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[Last checked: 25 October 2024.*]
*The last
time this Act was reviewed for updates.
COMMUNAL PROPERTY ASSOCIATIONS ACT 28
of 1996
[Updated to 11 October 2024.**]
**Date of last changes incorporated into this Act.
_______________
English text signed by the President
Assented to 15 May 1996
______________
Published: G. 17205 of 22 May 1996
Commencement:
22 May 1996
Amended by
Land Affairs General Amendment Act 61 of 1998 (G. 19291, with effect from 28 September 1998),
Rural Development and Land Reform
General Amendment Act 4 of 2011 (G. 34300, with effect from 16 May 2011),
Communal Property Associations
Amendment Act 20 of 2018 (G. 51363, with effect from 8 October 2024).
Uncommenced Amendment
Land Court Act 6 of 2023 (G. 49372, with effect
from 5 April 2024, unless otherwise indicated [Proc 162 in
G. 50448 of 5 April 2024])
ACT
To enable
communities to form juristic persons, to be known as communal property
associations in order to acquire, hold and manage
property on a basis agreed to
by members of a community in terms of a written constitution; to provide for
the establishment of
the Communal Property Associations Office, to provide for
the appointment and functions of the Registrar; and to provide for matters
connected therewith.
[Long Title substituted by s 22 of Act 20 of 2018 with effect from 8
October 2024.]
WHEREAS it is desirable that disadvantaged
communities should be able to establish appropriate legal institutions through
which they may
acquire, hold and manage property in common;
AND WHEREAS it is necessary to ensure that such
institutions are established and managed in a manner which is
non-discriminatory, equitable
and democratic and that such institutions be
accountable to their members;
AND WHEREAS it is necessary to ensure that
members of such institutions are protected against abuse of power by other
members;
[Preamble substituted by s 22 of Act 20 of 2018 with effect from 8
October 2024.]
BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:—
ARRANGEMENT OF
SECTIONS
1. Definitions
2. Application of Act
2A. General plan and registration of property
2B. Establishment
of CPA Office
2C. Appointment and
conditions of service of Registrar
2D. Functions of Registrar
3. Seal of Communal Property Associations
4. Exemption from liability
5. ...
6. Drafting of constitution
7. Adoption of constitution
8. Registration of associations
9. Principles to be accommodated in
constitutions
10. Information, dispute resolution and other
assistance
11. Monitoring and inspection
12. Approval for certain transactions
13. Administration, liquidation and
deregistration
14. Offences
15. Delegation of powers and assignment of
duties by Director-General
16. Appeals
17. Annual report by Director-General
17A. Fees
18. Regulations
18A. Transitional Provisions
19. Short title
Schedule
1. Definitions
In this Act, unless the context
indicates otherwise—
“association”
means a communal property association which is registered or qualifies for
registration in terms of section 8;
“authorised officer” means a person designated as such by the Registrar;
[“authorised officer” substituted by s 1(a) of Act 20
of 2018 with effect from 8 October 2024.]
“committee”
means a committee elected by the members of an association to manage the
affairs of that association;
“community”
means a group of persons, which wishes to have its rights to or in particular
property determined by shared rules under a written
constitution and which
wishes or is required to form an association as contemplated in section 2;
“constitution”
means a constitution adopted in terms of section 7 by an association;
Uncommenced Amendment "Court" means the Land Court established by section
3 of the Land Court Act, 2023, or a Magistrate’s Court in whose area of
jurisdiction
the land in question is situated; ["Court" inserted by s 36 of Act 6
of 2023 with effect from date to be proclaimed.] |
“CPA Office” means the Communal Property
Associations Office contemplated in section 2B and its regional offices;
[“CPA Office” inserted by s 1(b) of Act 20 of 2018
with effect from 8 October 2024.]
“Department” means the Department of Rural Development and Land Reform;
[“Department” inserted by s 1(b) of Act 20 of 2018
with effect from 8 October 2024.]
“Director-General” means the Director-General of Rural Development and Land Reform;
[“Director-General” substituted by s 30 of Act 4 of
2011.]
“holding of property in common” means the acquisition, holding and management of
property by an association on behalf of its members, in accordance with the
terms
of a constitution;
“interim committee” ...
[“interim committee” deleted by s 1(c) of Act 20 of
2018 with effect from 8 October 2024.]
“members”
means the members of an association or the members of a community, as the case
may be, including members who comply with the provisions
of paragraph (i) of
item 5 of the Schedule, and for the purposes of sections 12, 13 and 14, shall
mean those members whose names
appear on a list contemplated in the said item
5;
“Minister”* means the Minister of Rural
Development and Land Reform;
*Administration,
powers and functions transferred to the Minister of Land Reform and Rural
Development, effective immediately before the President assumed office on
19 June 2024 – Proc 199 / G. 51368 / 11 October 2024.
[“Minister” substituted by s 30 of Act 4 of 2011.]
“prescribed”
means prescribed by regulation;
“property”
includes movable and immovable property and any right or interest in and to
movable or immovable property or any part thereof;
“provisional association” ...
[“provisional association” deleted by s 1(d) of Act
20 of 2018 with effect from 8 October 2024.]
“register” means
the register contemplated in section 2D(d);
[“register” substituted by s 1(e) of Act 20 of 2018
with effect from 8 October 2024.]
“Registrar” means the Registrar of Communal Property
Associations contemplated in section 2C(1);
[“Registrar” inserted by s 1(f) of Act 20 of 2018
with effect from 8 October 2024.]
“Registration Officer” ...
[“Registration Officer” substituted by s 30 of Act
4 of 2011; deleted by s 1(g) of Act 20 of 2018 with effect from 8 October
2024.]
“similar entity”
means a trust as contemplated in the Trust Property Control Act, 1988 (Act No.
57 of 1988), a co-operative as contemplated in the
Co-operatives Act, 2005 (Act
No. 14 of 2005), or any other recognised association of persons or a company
registered in terms of
the Companies Act, 2008 (Act No. 71 of 2008);
[“similar entity” substituted by s 1(h) of Act 20
of 2018 with effect from 8 October 2024.]
“this Act” includes
any regulations made in terms of this Act.
(1) The
provisions of this Act shall apply to a community—
(a) which
by order of the Land Claims Court or any other competent court is entitled to restitution under the
Restitution of Land Rights Act, 1994 (Act 22 of 1994), where that Court has
ordered restitution
on condition that an association be formed in accordance
with the provisions of this Act;
Uncommenced Amendment (a) which by order of the Land Court is
entitled to restitution under the Restitution of Land Rights Act, 1994 (Act
22 of 1994),
where that Court has ordered restitution on condition that an
association be formed in accordance with the provisions of this
Act; [S 2(1)(a) substituted by s 36 of Act 6 of
2023 with effect from date to be proclaimed.] |
(b) which
is entitled to restitution in terms of [Restitution of Land Rights Act] Act No. 22 of 1994, and which
community has entered into an agreement with the Minister as contemplated in
section 42D of that Act,
where it is a condition of such restitution that an
association be formed in accordance with the provisions of this Act;
(c) which
is entitled to restitution in terms of [Restitution of Land Rights Act] Act No. 22 of 1994, and is the
beneficiary of land purchased, acquired or expropriated in accordance with the
provisions of section
42E of that Act, where it is a condition of such
restitution that an association be formed in accordance with the provisions of
this Act;
(d) which
is entitled to, or receiving property, or other assistance from the State in
terms of an agreement or in terms of any law,
where the Minister has approved
such community in terms of subsection (2) and on condition that an association
be formed in accordance
with the provisions of this Act;
(e) to
which any property has been donated, sold or otherwise disposed of by any other
person, where the Minister has approved such
community in terms of subsection
(2) and on condition that an association be formed in accordance with the
provisions of this Act;
(f) approved
by the Minister in terms of subsection (2), and which is a group acquiring land
or acquiring rights to land and which wishes
to form an association in
accordance with the provisions of this Act.
(g) to
which any property has been awarded in terms of any legislation, where the
Minister has approved such community in terms of subsection
(2) on condition
that an association be formed in accordance with the provisions of this Act;
and
(h) contemplated in subsection (5).
(2) The
Minister may, with due regard to the objects of this Act, approve a community
contemplated in paragraph (d), (e), (f) or (g)
of subsection (1) for the
purposes of this Act if he or she is satisfied it is in the public interest and
the interests of the
community that such approval be given, having regard to
the nature and current use of the land.
(3) The
Minister may on application by a similar entity and on advice of the Registrar,
or by order of any court, and having had due
regard to the objects of this Act
and the public interest, by notice in the Gazette,
and subject to such qualifications or conditions as he or she may determine—
(a) make
any provision of this Act applicable to such entity; or
(b) declare
such entity to be an association as contemplated in this Act and make any
provision of this Act applicable to such an association:
Provided that such an
entity must, within three months from the date on which it has been declared an
association, apply for deregistration
in accordance with the provisions of the
relevant Act in terms of which it was registered and provide the Registrar with
copies
of such application and upon deregistration, with copies of the
correspondence confirming such deregistration.
(4) For
the purposes of subsection (3)(a), any reference to an association shall be
deemed to be a reference to the entity in question.
(5) Where
a community has, prior to or after the commencement of this Act, established a
similar entity through a democratic process,
the Registrar may, if such
community wishes to establish an association contemplated in this Act, exempt
such community from such
provisions of section 6, 7 or 8 as may place an
unnecessary burden on the community, having regard to the procedure that was
followed
by the community in establishing such entity.
(6) A
condition by the Minister that an association be formed as contemplated in
section 2(1) shall only be made after a community has
taken a resolution to
form an association and informed the Minister of such a resolution.
[S 2 substituted by s 2 of Act 20 of 2018 with
effect from 8 October 2024.]
2A. General plan and
registration of property
(1) Notwithstanding
section 2 and section 42A of the Restitution of Land Rights Act, 1994 (Act No.
22 of 1994), property contemplated
in this Act shall be registered in the name
of the association within a reasonable time.
(2) For
the purposes of the registration of property in terms of the Deeds Registries
Act, 1937 (Act No. 37 of 1937) as contemplated
in section 2, the Department
shall, in consultation with the community concerned, have a general plan for
such property prepared
for approval in terms of the Land Survey Act, 1997 (Act
No. 8 of 1997), in instances where a general plan is required for such
purposes.
(3) The
general plan contemplated in subsection (1) shall outline parts of the property
reserved for—
(a) economic,
social, environmental and sustainable development and infrastructure investment
for the community concerned;
(b) crop
fields, grazing land, waterways, woodlands, conservation, recreational and any
other purpose for the community concerned;
(c) the
provision of economic, social and other services for the community concerned;
and
(d) subdivided
portions for residential, industrial and commercial purposes.
(4) The
Minister may prescribe the format for the general plan.
(5) The
Minister shall, from monies appropriated by Parliament for this purpose, pay
the costs of transfer, surveying and registration
required to give effect to
this Act.
[S 2A inserted by s 3 of Act 20 of 2018 with effect
from 8 October 2024.]
2B. Establishment of CPA Office
An office called the Communal Property Associations
Office is hereby established within the Department.
[S 2B inserted by s 3 of Act 20 of 2018 with effect
from 8 October 2024.]
2C Appointment and conditions
of service of Registrar
(1) The
Minister shall, subject to the laws governing the public service, appoint a
person as the Registrar of Communal Property Associations.
(2) The
Registrar may, with the consent of the Director-General, establish a regional
office for any area as may be agreed to by the
Director-General, and may
subject to the laws governing the public service, appoint a Deputy Registrar
for each such office, to
perform the functions of the Registrar in such office,
subject to the control of the Registrar.
(3) The
Registrar shall have minimum qualifications and experience as well as skills as
may be determined by the Minister.
(4) The
remuneration of the Registrar shall be determined by the Minister in
consultation with the Minister of Finance.
(5) The
Director-General shall in consultation with the Registrar designate any person
within the Department with relevant qualifications
to perform duties in the
office of the Registrar or the Deputy Registrar.
[S 2C inserted by s 3 of Act 20 of 2018 with effect
from 8 October 2024.]
2D. Functions
of Registrar
The Registrar is responsible for the
administration of the CPA Office and any regional office, and shall—
(a) with the consent of the Director-General,
establish a provincial office in each province and may, subject to the laws
governing
the public service, appoint a Deputy Registrar for each provincial
office, to perform the functions of the Registrar in such office,
subject to
the control of the Registrar;
(b) provide assistance to the
communities and associations concerned for the purposes of this Act;
(c) ensure the
verification of members of the association;
(d) register associations, subject
to the provisions of this Act, and keep record of all certificates of
registration issued, copies of such
certificates issued or addendums to such
certificates issued in accordance with the provisions of section 8(3);
(e) ensure compliance by
associations with the provisions of this Act;
(f) keep a register of registered associations
and entities to which provisions of this Act have been made applicable in terms
of section
2(3)(a), including entities declared as associations in terms of
section 2(3)(b);
(g) safeguard the register referred
to in paragraph (d) and the seal referred to in section 3;
(h) keep record of any
bank account opened in the name of an association and any letter issued in
terms of section 9(1)(e)(iii);
(i) keep record of any
delegation made in terms of this Act and regularly review such delegations;
(j) collect and keep record of any
information required for the purposes of the annual report referred to in
section 17;
(k) regularly advise
the Minister and Director-General respectively on the review of any regulations
prescribed or fees determined in terms of
this Act;
(l) on request, provide
members of the public with copies of the constitution of any association or
similar entity, or with information contained
in the register or any other
relevant records, in accordance with and subject to the provisions of the
Promotion of Access to Information
Act, 2000 (Act No. 2 of 2000);
(m) impress the seal referred to in section 3 on any certificate of registration
referred to in section 8(3)(a), on any copy of a certificate
of registration
referred to in section 8(3)(b), or on any addendum referred to in section
8(3)(c), on any letter referred to in
section 9(1)(e)(iii) and on any other
document as may be prescribed; and
(n) perform
any other functions assigned to the Registrar in this Act, directed by any
court, or as may be requested by the Minister
or Director-General to achieve
the objects of this Act.
[S 2D inserted by s 3 of Act 20 of 2018 with effect
from 8 October 2024.]
3. Seal
of Communal Property Associations
There shall be a seal of Communal Property Associations and judicial
cognisance may be taken of the impression of such seal.
No act or omission of whatever nature by the Director-General, Registrar
or any officer or other person performing functions under
the authority of the
Director-General or Registrar, as the case may be, in terms of this Act, shall
subject the Director-General,
the Registrar, or any such officer or person to
any liability for any loss or damage sustained by any person as a result of any
such act or omission, unless such act or omission was in bad faith or
constituted gross negligence.
[S 4 substituted by s 4 of Act 20 of 2018 with
effect from 8 October 2024.]
5. ...
[S 5 repealed by s 5 of Act 20 of 2018 with effect
from 8 October 2024.]
(1) A
community wishing to register an association under this Act may apply to the Registrar
for assistance in the preparation of a
draft constitution.
(2) The
Registrar shall, after receiving an application in terms of subsection (1),
designate any officer in the CPA Office or any other
suitable person to provide
the community with such assistance as may be required and available for the
preparation of a draft constitution.
(3) A
community must submit a draft constitution to the Registrar for consideration.
(4) The
Registrar may suggest amendments to such draft constitution in order to make it
comply with the provisions of section 9, and
shall notify the community of the
reasons for such suggestions.
[S 6 amended by s 31 of Act 4 of 2011; substituted
by s 6 of Act 20 of 2018 with effect from 8 October 2024.]
(1) When
a community wishes to adopt a constitution it shall notify the Registrar
accordingly, within a reasonable period of time and
shall convene a meeting or
meetings in such manner as may be prescribed for the adoption of constitutions:
Provided that a constitution
shall be adopted by a resolution of no less that
60% of the total number of the verified members of the association having the
right to make decisions.
[S 7(1) substituted by s 7(a) of Act 20 of 2018
with effect from 8 October 2024.]
(2) An
authorised officer shall attend the meeting or meetings contemplated in
subsection (1), to take minutes of the proceedings, to
witness the adoption of
the constitution and to prepare a report setting out his or her observations in
relation to—
(a) whether
the notice of the meeting was effective in ensuring the presence of members of
the community at the meeting;
(b) the
number of members of the community present at the meeting or validly
represented at the meeting, and whether the various interest
groups in the
community were represented at such meeting;
(bA) whether
members of the association have been properly identified by the community;
[S 7(2)(bA) inserted by s 7(b) of Act 20 of 2018 with
effect from 8 October 2024.]
(c) the
number of members of the community who voted in favour of and the number who
voted against the adoption of the constitution
or any specific provisions
thereof;
(d) whether
the interests of any person or group of persons are likely to be adversely
affected as a result of the adoption of the constitution;
(e) the
views of any dissenting persons; and
(f) any
other matter which the Minister may prescribe or which may be relevant to the
exercise of the Registrar’s discretion.
[S 7(2)(f) substituted by s 7(c) of Act 20 of 2018
with effect from 8 October 2024.]
(3) The
community shall, as soon as practicable after the adoption of the constitution,
submit it together with the prescribed information
to the Registrar.
[S 7(3) substituted by s 7(d) of Act 20 of 2018
with effect from 8 October 2024.]
(4) Any
person claiming to have been excluded from participation in the process of
preparation and adoption of the constitution or claiming
that the process was
not fair may lodge a complaint with the Registrar, who may, if he or she is
satisfied on reasonable grounds
that the complaint is material, refuse to register
the association until the issue has been resolved to the satisfaction of the
Registrar.
[S 7(4) substituted by s 7(d) of Act 20 of 2018
with effect from 8 October 2024.]
8. Registration
of associations
(1) The
Registrar shall consider an application for registration of an association
together with any prescribed information, the report
referred to in section
7(2) and the constitution adopted by the association.
[S 8(1) substituted by s 8(a) of Act 20 of 2018
with effect from 8 October 2024.]
(2) An
association shall qualify for registration if—
(a) the
provisions of this Act apply to the community concerned;
(b) the
association has, as its main object the holding of property in common;
[S 8(2)(b) substituted by s 8(b) of Act 20 of 2018
with effect from 8 October 2024.]
(c) the
constitution adopted by it complies with the principles set out in section 9;
(d) the
constitution adopted by it deals with the matters referred to in the Schedule;
(e) the
meeting or meetings referred to in section 7 were attended by a substantial
number of the members of the community; and
(f) the
resolution to adopt the draft constitution was supported by the majority of the
members of the community present or represented
at the meeting or meetings:
Provided that the Registrar may cause an association to be registered if
he or she is satisfied that—
[S 8(2), words following (f), substituted by s 8(c)
of Act 20 of 2018 with effect from 8 October 2024.]
(i) there has been substantial compliance with
the provisions of paragraphs (a) to (f) of this subsection;
(ii) the constitution reflects the view of the
majority of the members of the community; and
[S 8(2)(f)(ii) substituted by s 8(d) of Act 20 of
2018 with effect from 8 October 2024.]
(iii) the constitution has been adopted through a
process which was substantially fair and inclusive.
(3)
(a) If
the Registrar is satisfied that the association qualifies for registration he
or she shall register the association in the prescribed
manner, allocate a
registration number, and issue a certificate of registration.
(b) The
Registrar shall, if a certificate of registration contemplated in paragraph (a)
is lost or destroyed, on written application
by the association and on payment
of the fees determined by the Director- General, issue the association with a
copy of the certificate
filed in the Registrar’s Office and shall indicate on
such copy that it is a true copy of the original certificate
(c) The
name of an association may be changed in accordance with the prescribed
procedure and if the Registrar is satisfied that such
procedure has been
followed, he or she may issue an addendum to the certificate of registration,
indicating the new name of the
association.
(d) When
the name of an association is changed as contemplated in paragraph (c), the
Registrar shall inform the Registrar of Deeds in
whose area of jurisdiction the
immovable property which is administered by the association is situated, and
the Registrar of Deeds
shall endorse the community’s title deed to reflect the
new name of the association.
[S 8(3) substituted by s 8(e) of Act 20 of 2018
with effect from 8 October 2024.]
(4) If
the Registrar is not satisfied that the association qualifies for registration
he or she shall notify the community of the steps
to be taken to procure the
registration of the association.
[S 8(4) substituted by s 8(e) of Act 20 of 2018
with effect from 8 October 2024.]
(5) The
Registrar may assist a community to deal with any issue which is to be
addressed in order to procure the registration of the
association.
[S 8(5) substituted by s 8(e) of Act 20 of 2018
with effect from 8 October 2024.]
(6) Upon
the registration of an association—
(a) the
association shall be established as a juristic person, with the capacity to sue
and be sued;
(b) the
association may acquire rights and incur obligations on behalf of the community
concerned, in its own name in accordance with
its constitution;
(c) the
association may, on behalf of the community concerned, subject to the
provisions of its constitution and section 12—
(i) acquire
and dispose of immovable property and real rights therein; and
(ii) encumber
such immovable property or real rights by mortgage, servitude, or lease or in
any other manner;
(d) the
association shall have perpetual succession regardless of changes in its
membership;
(e) the
constitution shall be a legally binding agreement between the association and
its members, the association and members of the
committee and shall be deemed
to be a matter of public knowledge.
(f)* ...
*Section 8(6)(f),
wording prior to omission from Act 20 of 2018:
“(f) in
the case of an application by a provisional association, the provisional
association shall be deregistered and its assets transferred
to the
association.”
[S 8(6)(f) omitted by s 8(f) of Act 20 of 2018 with
effect from 8 October 2024.]
[S 8(6) substituted by s 8(f) of Act 20 of 2018
with effect from 8 October 2024.]
(7) ...
[S 8(7) deleted by s 8(g) of Act 20 of 2018 with
effect from 8 October 2024.]
(8) ...
[S 8(8) deleted by s 8(g) of Act 20 of 2018 with
effect from 8 October 2024.]
(9) An
association registered under this Act shall reflect on all correspondence and
contracts the fact that it is so registered, and
its registration number.
(10) No
amendment of a constitution of an association registered under this Act shall
be valid or binding until it has been lodged with
and accepted in writing by
the Registrar.
[S 8(10) substituted by s 8(h) of Act 20 of 2018
with effect from 8 October 2024.]
(11) The
provisions of sections 6 and 7 and subsections (1) to (5) of this section,
shall apply with the necessary
changes, with regard to any proposed amendment of the constitution of an
association registered under this Act: Provided that the Registrar
shall waive
compliance with the provisions of section 7 if he or she is satisfied that the
amendment was adopted in terms of the
constitution, that the nature of the
amendment is such that compliance with those provisions is not necessary, and
that the amendment
does not have a material adverse effect on the rights of
members.
[S 8(11) substituted by s 8(h) of Act 20 of 2018
with effect from 8 October 2024.]
9. Principles
to be accommodated in constitutions
(1) The
constitution of an association shall be consistent with the following general
principles—
(a) Fair
and inclusive decision-making processes, in that—
(i) all
members are afforded a fair opportunity to participate in the decision-making
processes of the association;
(ii) any
decision to amend the constitution or dissolve the association, or to dispose
of or to encumber immovable property, requires
a resolution of no less than 60%
of the verified members of the association who have the right to make decisions;
and
[S 9(1)(a)(ii) substituted by s 9(a) of Act 20 of
2018 with effect from 8 October 2024.]
(iii) the
membership of any person may only be terminated on reasonable grounds by the
association after the matter has been considered
at a fair hearing at which the
member was given an opportunity to present his or her case;
(b) fair
and non-discriminatory membership, in that—
[S 9(1)(b), words preceding (i), substituted by s
9(b) of Act 20 of 2018 with effect from 8 October 2024.]
(i) there
is no discrimination against any prospective or existing member of the
community, directly or indirectly, and, without derogating
from the generality
of this provision, on one or more of the following grounds, namely race,
gender, sex, ethnic or social origin,
colour, sexual orientation, age,
disability, religion, conscience, belief, culture or language: Provided that a
constitution may
reflect the rules of a community with regard to the age at
which a member may attend and vote at meetings of the association and
the age
at which a member may receive an allocation of land rights;
(ii) where
different classes of membership are created—
(aa) the
basis for differentiation is compatible with the overriding principle of
equality;
(bb) and
a community already occupies land, different classes shall not lead to
different rights to land or resources among those members
of the community who
occupy the land, where no such differentiation existed previously; and
(cc) all
members within a class of membership have equal rights;
(c) democratic
processes, in that all members have the right—
(i) to
receive adequate notice of all general meetings of the association;
(ii) to
attend, speak at and participate in the voting at any general meeting;
(iii) to
receive copies of minutes or to have other reasonable access to records of
decisions taken at general meetings;
(iv) to
inspect and make copies of the financial statements and records of the
association; and
(v) to
have access to a copy of the constitution;
(d) fair
access to the property of the association, in that—
(i) the
association shall manage property owned, controlled or held by it for the
benefit of the members in a participatory and non-discriminatory
manner;
(ii) a
member may not be excluded from access to or use of any part of the association’s
property which has been allocated for such
member’s exclusive or the communal
use except in accordance with the procedures set out in the constitution; and
(iii) the
association may only sell, donate or encumber the property of the association,
or any substantial part of it, in accordance
with the provisions of section
12(1);
[S 9(1)(d) substituted by s 9(c) of Act 20 of 2018
with effect from 8 October 2024.]
(e) accountability
and transparency, in that—
(i) accountability
by the committee or committees to the members of the association is promoted;
(ii) the
financial records of the association are subject to an annual independent
verification, as approved by the Registrar;
[S 9(1)(e)(ii) substituted by s 9(d) of Act 20 of 2018
with effect from 8 October 2024.]
(iii) all
the cash of the association shall be deposited in an account opened in the name
of the association with a bank registered in
terms of the Banks Act, 1990 (Act
94 of 1990), the South African Postbank Limited Act 2010 (Act No. 9 of 2010), or such other
institution as may be approved by the Director-General: Provided that—
(aa) an
association may only open an account upon receipt of an original letter issued
and signed by the Registrar, confirming that the
association complies with the
provisions of this Act, that it has been registered in terms of this Act and
containing such other
information as may be prescribed;
(bb) the
letter referred to in subparagraph (aa) shall be addressed to the specific bank
or institution where the association wishes
to open an account and shall only
be valid for the period indicated in the letter; and
(cc) the
association shall, within 14 days from opening such an account, provide the
Registrar with the account number and such other
details as may be required by
the Registrar;
[S 9(1)(e)(iii) substituted by s 9(d) of Act 20 of
2018 with effect from 8 October 2024.]
(iv) the association may not purchase or acquire for consideration securities
other than securities which are listed on a licensed exchange contemplated
in
section 9 of the Financial Markets Act, 2012 (Act No. 19 of 2012).
[S 9(1)(e)(iv) substituted by s 9(d) of Act 20 of
2018 with effect from 8 October 2024.]
(v) there shall be effective financial management and recording of the
transactions of the association;
(vi) the committee members shall have fiduciary responsibilities in relation to the
association and its members, and shall exercise their
powers in the best interests of all the members of the association.
[S 9(1)(e)(vi) substituted by s 9(e) of Act 20 of
2018 with effect from 8 October 2024.]
(2) The constitution of an association shall be
interpreted in a manner which is consistent with the spirit and objects of the principles referred to in subsection (1).
10. Information, dispute
resolution and other assistance
(1) The Registrar may have forms, pamphlets and
other documents prepared and distributed in order to promote the achievement of
the
objects of this Act.
(2) The Registrar may, of his or her own accord
or at the request of a community, an association or any member thereof, appoint
any
person who is experienced in dispute resolution and who is acceptable to
the parties to a dispute to assist in resolving any issues
for the purpose of
the preparation or adoption of a constitution or to resolve a dispute between
an association and its members
or between members or committee members of an association: Provided that if the
parties to the dispute do not reach
agreement on the person to be appointed,
the Registrar may appoint a person who in
his or her opinion who has adequate experience or knowledge of dispute
resolution.
(3) A person appointed in terms of subsection
(2) shall attempt to resolve the dispute—
(a) by mediating the dispute;
(b) by determining facts
relevant to the resolution of the dispute;
(c) by making a
recommendation to the parties to the dispute;
(d) in any other manner
that he or she considers appropriate.
(4) The person appointed in terms of subsection
(2) shall report to the Registrar and the parties on the result of his or her dispute
resolution and make recommendations in relation thereto: Provided that any
recommendation accepted by the Registrar shall be binding on the association.
(5) All discussions taking place and all
disclosures and submission made during the dispute resolution process shall be
privileged,
unless the parties agree to the contrary.
(6) The Registrar may hum time to time appoint
persons or organisations acceptable to a community and with relevant knowledge
or expertise to provide
assistance and support to such community for the purposes of section 6.
(7) Any person contemplated in subsection (2)
or (6) who is not in the full-time service of the State may from the funds of
the Department,
be paid such remuneration and allowances in respect of the
services rendered as the Minister, with the concurrence of the Minister
of
Finance, may determine from time to time.
(8) The Minister may, in consultation with the
Minister of Finance institute other programmes for the provision of assistance
to communities
or associations for the purposes of this Act.
[S 10 substituted by s 10 of Act 20 of 2018 with
effect from 8 October 2024.]
(1) An association registered under this Act shall, at the prescribed times, furnish prescribed documents and information to
the Registrar in order to enable him or her to monitor compliance with the
provisions of the relevant constitution and this Act.
(2) The Registrar may undertake an inspection
of the affairs of an association.
(3) The Registrar may, for the purposes of this
section—
(a) inspect and remove, for the
purposes of copying only, any records, reports and other documents relating to
the affairs of an association
and ensure the prompt return of all such
documents;
(b) subpoena persons who
may have relevant information or documentation in respect of the affairs of an
association to appear before
him or her to provide information or documentation in relation to the affairs
of the association, if the attendance of such
persons cannot reasonably be
procured otherwise.
(4) A
subpoena issued in terms of subsection (3)(b) shall be served in accordance
with the manner prescribed for the service of subpoena
in terms of the
Magistrates’ Courts Act, 1944 (Act 32 of 1944).
(5) Any
person who is duly subpoenaed in terms of subsection (3)(b) and who fails,
without lawful excuse, to appear or to provide the
required information or
documentation, shall be guilty of an offence and liable to the punishment
provided in the said Magistrates’
Courts Act, 1944, for failure to comply with
a subpoena issued in terms of that Act.
(6) If
a dispute arises within an association the Registrar may, of his or her own
accord, or at the request of a member of the association—
(a) undertake
an enquiry into the activities of the association, in which event he or she
shall take reasonable steps to ensure that
interested parties are made aware of
the enquiry and of its outcome;
(b) advise
the association and the members of their respective rights and obligations;
(c) make
a person contemplated in section 10(2) available to assist in the resolution of
the dispute;
(d) on
good cause shown and having heard the parties concerned, dissolve a committee
or relieve a committee member of his or her duties
and require the members of
the association to conduct an election for a new committee or appoint a new
member, if the integrity,
impartiality or effectiveness of the committee or any
member of the committee is in question;
(dA) appoint
an interim committee from amongst members of the association pending the
election of a new committee, and the interim committee
shall have—
(i) all
the powers of a committee; and
(ii) an
official designated by the Registrar as one of its members;
(e) initiate
proceedings contemplated in section 13; or
(f) take
such other reasonable measures as he or she considers appropriate in the
circumstances.
(6A) No
person convicted of an offence in the Republic or elsewhere which involves
dishonesty or any other offence for which he or she
has been sentenced to
imprisonment without the option of a fine, shall be elected as a committee
member or, if such person has
already been elected to be a member, he or she
shall resign as a member.
(7) When
acting in terms of subsection (6) the Registrar shall be guided by the aim of
resolving the dispute in accordance with the
provisions of the constitution of
the association.
(8) The
identity of a member making a request in terms of subsection (6) or the fact
that a request has been made by a member need not
be disclosed if there are
reasonable grounds for believing that such member may be victimised.
(9) If
the membership of a member has been terminated, the association shall inform
the Registrar and provide the him or her with the
prescribed information
relating to the termination.
[S 11 substituted by s 11 of Act 20 of 2018 with
effect from 8 October 2024.]
12. Approval
for certain transactions
(1) An
association may not without the consent of the majority of members present at a
general meeting of members—
(a) sell,
donate or encumber communal land or immovable property of the community or any
real rights in respect thereof, or conclude
any transaction including any
prescribed transaction in respect thereof, or purchase any immovable property,
without the prior
consultation with the Minister and without a resolution
supported by no less than 60% of the members of the association having a
right
to make decisions as contemplated in item 8 of the Schedule: Provided that if
an association decides to sell immovable property,
notice of such intention
shall be given to the Director-General and the Department shall have the first option
to purchase such
immovable property: Provided further that the Department
shall, within three months from the date of receipt of such notice, inform
the
association whether it intends purchasing the immovable property or not, and if
it decides to purchase, such purchase shall
be concluded within nine months
from the date of receipt of the notice;
(b) sell,
donate or encumber any movable property, or purchase any movable property, without
the consent of the majority of members
of the community present at a general
meeting of members and, if such movable property was bought or is to be bought
through financial
assistance provided by the Department, without the consent of
the Registrar; or
(c) enter
into any lease agreement in respect of any immovable property without the
consent of the majority of the members of the community
and the Registrar:
Provided that the Registrar may only provide such consent if, in his or her
opinion, the provisions of the lease
agreement, including the lease period, the
rental to be paid and the purposes for which the property is to be used, are
reasonable
and in the best interest of the community.
(2) The
requirement of consultation with the Minister referred to in subsection (1)(a)
and the requirement of consent referred to in
subsection 1(b) and (c) may be
given in respect of a series of transactions, without identifying each
individual transaction.
(3) Any
disposal, mortgage, encumbrance, purchase or prescribed transaction in
contravention of subsection (1) shall be voidable.
(4) A
member who alleges that an association has concluded a transaction contrary to
the provisions of subsection (1) may request the
Registrar to intervene in
challenging the validity of such transaction.
(5) The
Registrar may, if he or she considers it desirable having regard to the nature
and seriousness of the allegation, make a person
contemplated in section 10(2)
available to assist in the resolution of the dispute.
(6) The
Registrar shall, at the request of an association, appoint an authorised
officer to attend a general meeting of an association
and to take such other
steps as may be necessary in order to certify that a transaction referred to in
subsection (1) has been
duly approved at a general meeting and is in accordance
with the constitution of the association.
[S 12 substituted by s 12 of Act 20 of 2018 with
effect from 8 October 2024.]
13. Administration,
liquidation and deregistration
(1)
(a) A
division of the High Court or a Magistrate’s Court having jurisdiction in
respect of the area in which the property of the association
is situated may,
on application made by the Registrar, an association or any member thereof, or
any other interested person, place
the association under the administration of
the Registrar or grant a liquidation order in respect of an association, where
the
association, because of insolvency or maladministration or for any other
cause is unwilling or unable to pay its debts or is unable
to meet its
obligations, or where it would otherwise be just and equitable in the
circumstances.
(b) If
an association is placed under the administration of the Registrar as contemplated
in paragraph (a), the Registrar shall, subject
to any conditions as the Court,
Minister or Director-General may determine, administer and manage the affairs
of the association
and perform the functions of the association in accordance
with the provisions of this Act: Provided that if the Registrar is unable
to
administer or manage the affairs of such an association or if it would be in
the best interest of the association that it be
administered or managed by
another person, the Registrar may, in consultation with the Director-General,
appoint any competent
person to administer and manage the affairs of the
association and to perform the functions of the association in accordance with
the provisions of this Act: Provided further that any person so appointed shall
act under the supervision of the Registrar.
(c) Any
competent person contemplated in paragraph (b) who is not in the full-time
service of the State may from funds of the Department
be paid such remuneration
and allowances in respect of the services rendered as the Minister, with the
concurrence of the Minister
of Finance, may determine from time to time.
(d) The
Registrar shall, in good faith, cover the costs of any expenses related to the
administration and management of the affairs
of an association placed under his
or her administration by defraying from any funds held by the association and
should such funds
be insufficient, from funds of the Department as may be made
available by the Director-General.
Uncommenced Amendment (1) The Land Court or the Magistrate's Court
having jurisdiction in respect of the area in which the property of the
association
is situated or the area in which the land which may be acquired
by a provisional association is situated, may, on application
made by the
Director-General, an association or provisional association or any member
thereof, or any other interested person,
place the association or provisional
association under the administration of the Director-General or grant a
liquidation order
in respect of an association or provisional association,
where the association or provisional association, because of insolvency
or
maladministration or for any other cause is unwilling or unable to pay its
debts or is unable to meet its obligations, or
where it would otherwise be
just and equitable in the circumstances. [S 13(1) substituted by s 36 of Act 6 of 2023
with effect from date to be proclaimed.] |
(2) …
[S 13(2) omitted by s 13 of Act 20 of 2018 with effect from 8 October
2024.]
(3) The
Registrar may, upon written application by an association, cause such an
association to be deregistered, if he or she is satisfied
that—
(a) a
resolution in favour of deregistration was adopted by no less than 60% of the
members of the association who were present or represented
at the meeting;
(b) the
resolution was adopted by at least 60% of the members present or represented at
the meeting; and
(c) all
relevant matters which reasonably have to be addressed prior to deregistration,
including the way in which the assets and liabilities
of the association will
be dealt with, have been addressed.
(4) Where
the Court orders the liquidation of an association, it shall make such order as
to the distribution of the assets of the association
as it deems just and
equitable, having considered any recommendations which the Director-General or
Registrar may make in this
regard.
(5) The
Minister may prescribe the procedure to be followed in an application
contemplated in subsection (1), and set out the powers
and duties of the
Director-General, the Registrar, the association, members and interested
parties in those situations.
[S 13 substituted by s 13 of Act 20 of 2018 with effect from 8 October
2024.]
14. Offences
(1) A
person shall be guilty of an offence if he or she—
(a) in
breach of the provisions of a constitution grants or purports to grant to any
person rights in respect of the property of an
association or access to such
property;
(b) acts
in breach of the fiduciary relationship contemplated in section 8(7);
(c) abuses
any power or authority vested in him or her by the members of the association
by doing anything or refraining from doing
anything or threatening to do or
refrain from doing anything, in such a manner that the benefits or rights of a
member are prejudiced
or threatened;
[S 14(1)(c) substituted by s 14(a) of Act 20 of 2018 with effect from 8
October 2024.]
(d) incites
or attempts to incite any person to commit the offence contemplated in
paragraph (c);
(e) ....
[S 14(1)(e) deleted by s 14(b) of Act 20 of 2018 with effect from 8
October 2024.]
(f) breaches
the provisions of the constitution relating to financial matters;
[S 14(1)(f) added by s 14(c) of Act 20 of 2018 with effect from 8
October 2024.]
(g) contravenes
the provisions of section 11(9) or 12(1);
[S 14(1)(g) added by s 14(c) of Act 20 of 2018 with effect from 8
October 2024.]
(h) interferes
with the work of the competent person contemplated in section 13 or an interim
committee contemplated in section 11;
or
[S 14(1)(h) added by s 14(c) of Act 20 of 2018 with effect from 8
October 2024.]
(i) destroys,
without the consent of the Registrar, any documents which may serve as proof of
an investment, encumbrance, alienation
or disposal of communal land or
property.
[S 14(1)(i) added by s 14(c) of Act 20 of 2018 with effect from 8
October 2024.]
(2) …
[S 14(2) deleted by s 14(d) of Act 20 of 2018 with effect from 8 October
2024.]
(3) In
a prosecution or any proceedings for the eviction of any person from property
owned, controlled or managed by an association,
a certificate issued by the Registrar
in terms of subsection (2) shall be prima facie proof of the correctness
of the contents thereof.
[S 14(3) substituted by s 14(e) of Act 20 of 2018 with effect from 8
October 2024.]
(4) Any
person convicted of a contravention of subsection (1) shall be liable to a fine
or to imprisonment for a period not exceeding
10 years or to both such fine and
imprisonment.
15. Delegation
of powers and assignment of duties by Director-General
(1) The
Registrar may—
(a) delegate
to any officer of the CPA Office or Department any power conferred upon him or
her by or under this Act, either generally
or in a particular case, except the
power to register an association;
(b) authorise
any such officer to perform any duty assigned to him or her by or 50 under this
Act.
(2) Any
delegation under this section shall not prevent the exercise of the relevant
power by the Registrar himself or herself, and
the Registrar shall be entitled
to rescind, review or withdraw any decision or action taken by any person to
whom he or she has
delegated any power.
[S 15 amended by s 6 of Act 61 of 1998, s 32 of Act 4 of 2011; substituted by s 15 of Act 20 of 2018 with effect
from 8 October 2024.]
16. Appeals
Any person aggrieved by a decision of the Registrar or Director-General
may in the prescribed manner appeal to the Minister, who
may uphold the appeal
in whole or in part and rescind or vary the decision, or dismiss the appeal.
[S 16 substituted by s 16 of Act 20 of 2018 with effect from 8 October
2024.]
17. Annual
report by Director-General
(1) The
Registrar shall annually and in respect of the preceding financial year, submit
to the Minister a report complying with the
provisions of subsection (2), concerning
associations and the extent to which the objects of this Act are being
achieved, and the
Minister shall table the report in Parliament.
(2) The
report contemplated in subsection (1) shall indicate the total number of
associations registered since the commencement of this
Act and in respect of
the reporting year, contain information in respect of—
(a) the
number of associations registered in compliance with the provisions of section
2(1), including but not limited to the names
of the associations, the number of
members thereof, and information relating to the immovable property
administered and managed
by the associations, including but not limited to
descriptions of the immovable property and information relating to the
provisions
of section 12(1);
(b) the
number of similar entities declared as associations in terms of section 2(3) or
to which the provisions of this Act have been
made applicable as contemplated
in section 2(3), including the names of the similar entities or declared
associations, the number
of members thereof, and information relating to the
immovable property administered and managed by such entities or declared
associations,
including but not limited to descriptions of the immovable
property and information relating to the provisions of section 12(1);
(c) the
number of associations deregistered and the reasons for deregistrations;
(d) any
dispute dealt with in accordance with the provisions of this Act, including
information in respect of the nature of the dispute,
the person appointed to
resolve any dispute and the recommendations made by such person and accepted by
the Registrar;
(e) the
number of associations placed under administration, the reasons therefore, any
conditions applicable thereto and the financial
implications thereof;
(f) persons
found guilty of any offence as contemplated in section 14, including but not
limited to the nature of the offence and the
sanction imposed;
(g) any
appeals lodged in accordance with the provisions of section 16, including but
not limited to the nature of the appeal and the
decision of the appeal
authority;
(h) the
budget and expenses of the CPA Office;
(i) any
matter as may be directed by the Minister or Director-General;
(j) any
matter deemed necessary by the Registrar; and
(k) any
matter deemed necessary by the Registrar in relation to the performance of
associations generally.’
[S 17 substituted by s 17 of Act 20 of 2018 with effect from 8 October
2024.]
17A. Fees
(1) The
Director-General may, in consultation with the Registrar and the National
Treasury, determine any fees payable in terms of this
Act and publish such fees
in the Gazette.
(2) The
Director-General shall, before determining fees in terms of subsection (1),
publish the proposed fees for public comment.
[S 17A inserted by s 18 of Act 20 of 2018 with effect from 8 October
2024.]
18. Regulations
(1) The
Minister may make regulations intended to give effect to the implementation of
this Act, including—
(a) the
management of associations;
(b) the
management of business affairs conducted by or on behalf of the associations;
and
(c) the
minimum thresholds relating to the sale, donation, encumbrance or purchase of
certain categories of movable property.
(2) Any
regulation made under subsection (1) may in respect of any contravention
thereof or failure to comply therewith prescribe a
penalty of a fine or
imprisonment or both such fine and imprisonment.
[S 18 substituted by s 19 of Act 20 of 2018 with effect from 8 October
2024.]
18A. Transitional Provisions
(1) All functions which were, immediately
before the commencement of
this Act, performed by the Registration Officer, hereby vest in the Registrar.
(2) Any
provisional association which at the commencement of this Act has not yet
adopted a constitution and has not been registered
as an association, must
adopt a constitution and be registered as an association within 12 months from
the date of commencement
of this Act: Provided that the Director-General may,
on application made by the provisional association or the Registrar prior to
the expiry of the period of 12 months, extend the period with a further 12
months: Provided further that no further extension may
be granted and should
such a provisional association not adopt a constitution and be registered as an
association, it shall cease
to exist and any immovable or movable property or
any other assets administered and managed by a provisional association must be
dealt with by the Registrar in a just and equitable manner or as may be
directed by the Minister, having due regard to the public
interest.
(3) Any
right of a provisional association to administer land prior to the repeal of
section 5, remains in force during the period of
12 months or extended period
of 12 months referred to in subsection (2) and may not be alienated during such
period or extended
period.
(4) A
provisional association referred to in subsection (2) is a juristic person with
the capacity to sue or be sued.
(5) Any
association which has been placed under administration of the Director-General
prior to the commencement of this Act shall,
from the date of appointment of
the Registrar, be under administration of the Registrar and subject to any
conditions which may
have been determined in accordance with the provisions of
section 13.
(6) The
Director-General shall, in consultation with the Minister, appoint a competent
officer of the Department to perform the functions
of the Registrar from the
date of commencement of this Act, until the post of Registrar is filled.
[S 18A inserted by s 20 of Act 20 of 2018 with effect from 8 October
2024.]
19. Short
title
This Act
shall be called the Communal Property Associations Act, 1996.
Schedule
MATTERS TO BE ADDRESSED
IN THE CONSTITUTION OF A COMMUNAL PROPERTY ASSOCIATION
(Section 8(2)(d))
[Schedule amended by s 21 of Act 20 of 2018 with effect from 8 October
2024.]
1. Name
of the association.
2. Address
of the association.
3. Objects
of the association, including the identity of the community.
4. Land
or property to be owned by the association, if known.
5. Qualifications
for membership of the association, including a list of the names and, where
readily available, identity numbers of
the intended members of the association:
Provided that where it is not reasonably possible to provide the names of all
the intended
members concerned, the constitution shall contain—
(i) principles
for the identification of other persons entitled to be members of the
association; and
(ii) a
procedure for resolving disputes regarding the right of other persons to be
members of the association.
6. Classes
of membership (if any) and the rights of members of different classes.
7. The
rights of members to the use of the association’s property.
8. Whether
membership is based on individuals or families; if based on families, how the
family is to be represented in the decision-making
process of the association.
9. The
grounds and procedure for terminating membership, and what happens to the
rights and property of the member concerned.
10. The
property: The purposes for which it may be used, and the physical division and
allocation of the property.
11. Whether
members may sell their rights and, if so, to whom.
12. What
happens to a member’s rights on his or her death.
13. How
the committee is to be elected, its terms of office, which shall not exceed
five years, its powers, the powers of members in
relation to decisions made by
the committee, the power of members to remove the committee or members of the
committee, and payment
(if any) of the committee members.
[Schedule, item 13, substituted by s 21 of Act 20 of 2018 with effect
from 8 October 2024.]
14. How
and when the Annual General Meeting is to be called, the quorum or other measure of representativity at an Annual General
Meeting, and procedure at an Annual General Meeting.
15. General
Meetings: How and when General Meetings are to be called, the quorum or other measure of
representativity at a General Meeting, and procedure at a General Meeting.
16. The
powers of the association, and any limitations on them.
17. Who
is responsible for keeping minutes of meetings, and access to the minutes by
members.
18. Financial
matters: How the money of the association will be dealt with, who will have the
right to make payments on behalf of the
association, how and by whom the
financial records will be kept, what provision there will be for independent
verification of the
financial records, distribution and division of profits,
responsibility and apportionment of working expenditure, and access to
financial information by members.
19. How
the constitution may be changed.
20. How
the association may be dissolved, and in that event what will happen to the
assets of the association.
21. Disciplinary
matters, and in particular how corruption, nepotism and offences referred to in
section 14 of the Act are to be dealt
with.
22. How
disputes in the association are to be resolved.