TRUST DEED
SCALABRINI CENTRE OF CAPE TOWN
INDEX
CLAUSE HEADING PAGE
1. Preamble
2. Definitions
3. Objects of Trust
4. The Trustees
5. Powers of Trustees
6. Trustees Meetings
7. Management
8. Director and General
Manager
9. Finance
10. Disputes
11. Exemption & Indemnification
12. Amendments
13. Termination
Annexure A
1. PREAMBLE
1.1 The Scalabrinian Fathers
(referred to hereinafter as the Founder) is an international
organisation committed to assisting migrant communities and displaced people
in all parts of the world;
1.2 The Founder has acquired
a building in Cape Town that is to be used a centre where
it operates or intends operating various programmes to assist migrants and displaced
persons;
1.3 The Founder is concerned
that the beneficiaries of these programmes should not only
be migrants from communities external to South Africa, but migrants from within
the borders of South Africa, and poor people generally, so as to avoid any potential
conflict amongst poor people over benefits and resources;
1.4 The Founder believes
that to this end it is desirable that an autonomous legal
entity of a secular character should be established to operate such programmes;
1.5 Accordingly the Founder
and the initial trustees, whose names are set out in this Trust
Deed, have agreed to establish a trust, for the objects described in this Trust
Deed
2. DEFINITIONS
In this deed, the following
words or phrase shall have the meanings assigned to them
below:
2.1. “Beneficiaries” or “beneficiary community” shall mean refer to migrants and the migrant community, regardless of their place of origin, currently residing in the area of the Cape Peninsula or elsewhere in the Republic, as well as other economically disadvantaged communities of the Cape Peninsula or elsewhere;
2.2 “Director” shall mean the director appointed by the trustees in terms of this deed;
2.3 “Staff” shall mean employees of the trust, including the director;
2.4 "This deed" shall mean this trust deed as originally framed, and as amended by this document, and any subsequent amendments thereto;
2.5 “Trust" shall mean the trust constituted in terms of this deed;
2.6 “Trust Fund" shall mean the fund constituted by the initial donation by the Founder and as supplemented by such additional assets or funds as may from time to time vest with the trustees;
2.7 “Trustees" shall mean the trustees for the time being of the trust, appointed in terms of clause;
2.13 Words importing the
singular number shall include the plural number (and vice
versa) and words importing one gender only shall include the other two.
3. OBJECTIVES
The main objects of the
Trust shall be as follows:
3.1 To carry out public benefit activities that are philanthropic and benevolent
in nature, having regard to the needs, interest and welfare of society, including:
3.1.1 the rescue or care of person in distress and the provision of poverty relief;
3.1.2 the promotion of the economic, social, spiritual and cultural well being of the various displaced or historically displaced people in the Republic of South Africa;
3.1.3 the promotion and
protection of the rights and interests of, and the care of
asylum seekers and refugees;
3.1.4 the promotion of reconciliation, mutual respect and tolerance between the various peoples of South Africa, including integration between refugees and local communities.
3.2 Community development for poor and needy persons, anti-poverty initiatives and schools including:
3.2.1 the promotion of community-based projects relating to self-help, empowerment, capacity building, skill developments or anti-poverty;
3.2.2 the provision of training support or assistance to community-based projects contemplated in item (4.2.1); though supporting Community Based Organisations (CBO) and Non Government Organisations (NGO) whose main focus is the development of disadvantaged communities;
3.2.3 the assistance of high or primary schools in both training and resources.
3.3 The income and property of the trust must be applied solely towards furthering its objects, on a non-profit basis. The trust may therefore not make any payment or transfer, directly or indirectly, to any trustee, or any relative of any trustee, except in respect of his/her employment with the trust, or in return for any services actually rendered to the trust by him/her.
4. THE TRUSTEES
4.1 The trustees of the trust shall comprise three persons nominated by the Founder and three or more other persons, provided that the total number of trustees shall not exceed ten (10).
Initial trustees
4.2 The initial trustees will be as follows:
4.2 Minimum Number of Trustees
There shall at all times be not less than five (5) Trustees. If at any time there are for any reason less than the required number of Trustees, then the remaining Trustees shall be entitled to co-opt as many persons to fill the vacancies as will ensure compliance with this clause.
4.3 New Trustees
4.3.1 A majority of trustees may from time to time appoint additional trustee(s);.
4.3.2 Any successor appointed as trustee in terms hereof shall, upon her or his written acceptance of appointment, be deemed to be vested with and bound by all the powers and duties of a trustee as set out in this Deed.
4.4 Alternates
Alternate trustee(s) may be nominated to act in the event of the temporary absence or inability to act of any trustee.
4.5 Removal of Trustee
A trustee may be removed by resolution approved by a majority of trustees :
provided that this shall not preclude such trustee from invoking the disputes
procedure as set out below.
4.6 Disqualification
The following persons shall be disqualified from acting as a trustee:
4.6.1 A person who would be disqualified from acting as a director of a Company in terms of the company laws in force from time to time;
4.6.2 A person whose estate has been sequestrated or liquidated;
4.6.3 A person who is declared to be mentally ill or incapable of managing his affairs;
4.6.4 A person who has been convicted of any crime involving dishonesty or has been sentenced to imprisonment without the option of a fine.
4.7 Vacancies
4.7.1 The office of a trustee shall become vacant if:
4.7.1.1 s/he becomes disqualified in terms of Clause 4.6;
4.7.1.2 s/he resigns in writing, in which case the resignation shall take effect not less than 60 days after it is received by the trust;
4.7.1.3 s/he is absent without excuse from three (3) consecutive trustees meetings;
4.7.1.4 not less than two-thirds of the trustees resolve a trustee be removed, at a meeting convened for this purpose.
4.7.2 If there are at any time no trustees in office, the auditors of the trust, and if there be no auditors then appointed, the last appointed auditor, shall make the necessary nomination for appointment; and take all steps necessary to arrange for such appointment to be confirmed.
4.7.3 No act of the trustees shall be invalid merely by reason of a temporary vacancy in their number, provided that such vacancy shall not endure for a period longer than 180 days.
5. POWERS OF TRUSTEES
5.1 General
The trustees shall have such powers as they deem necessary to administer the trust effectively and promote its objects. In addition to all powers enjoyed by them under the common law or by statute, they shall have the general powers set out in Annexure A hereto.
5.2 The trustees shall have the power to establish separate parts of the trust fund, with distinct objects and purposes, and to keep separate books and to account separately in respect of each such part of the trust fund, or to cause to be established one or more other trust, association, company or other legal entity, and to transfer funds and assets to such entity/ies, if in the opinion of the trustees they will be better able to achieve the objects of this deed by doing so.
6. TRUSTEES MEETINGS
6.1 Office-bearers
Upon their appointment and thereafter after every cycle of two years the trustees must elect a chairperson and vice-chairperson.
6.2 Meetings
The chairperson may convene a meeting of trustees at any time, but must do so not less than once every six (6) months, or upon a requisition signed by any two (2) trustees.
6.3 Notice
Not less than fourteen (14) days written notice must be given of meetings, except in the case of special meetings, where not less than seven (7) days written notice may be given;
6.4 Quorum
Four (4) trustees present at a meeting convened in terms of this deed shall constitute a quorum;
6.5 Procedure at meetings
The chairperson or in his/her absence the vice-chairperson shall preside at trustees meetings. In the absence of either the chairperson or vice-chairperson, the meeting may elect an acting chairperson.
6.6 Voting
Decisions shall be made by a simple majority of trustees present. In the event of an equality of votes, the person presiding shall have a second or casting vote.
6.7 A resolution in writing signed by all the trustees shall be as valid and effectual as if it had been passed at a meeting of the trustees duly called and constituted;
6.8 Minutes
The secretary must keep a record of those present at trustee’s meetings, and record the minutes of meetings. The chair must sign these minutes after they have been approved. The minutes must then be circulated to all trustees and be available for inspection by any member of staff.
Attendance of staff
6.9 The director shall be entitled to attend all trustees’ meetings in an ex officio capacity, with full speaking rights, but not voting rights.
6.10 Trustees shall be entitled to co-opt or invite an additional member of staff to attend any meeting where in the opinion of the trustees it is appropriate to do so. Such staff member will be entitled to attend the meeting for the duration of the discussion of the specific item in question, and have full speaking rights, but not voting rights.
7. MANAGEMENT
7.1 Executive Committee
An executive committee may
be constituted to manage the affairs of the trust
In between trustees’ meetings, with such powers as may be delegated to
it by the trust.
7.2 Composition
The management committee shall be composed of the Director and two trustees
nominated by the trustees to serve on the committee.
7.3 Notice of Meetings
Management committee meetings must be convened on not less than two (2) days' prior notice to the trustees concerned.
7.4 Quorum
Not less then one member of staff and one trustee shall constitute a quorum.
7.5 Proceedings at meeting
One of the trustees shall act as chairperson of all management committee meetings, and decisions of the meetings shall be arrived at by consensus. In the absence of consensus, the matter must be referred to the board for decision.
7.6 Minutes
A member of staff shall ensure that the proceedings of all management committee meetings are minuted, and that minutes are circulated to the trustees and members of the committee.
8. DIRECTOR
8.1 The trustees may appoint a director with overall responsibility for directing the affairs of the trust and raising funds for its activities, and such additional responsibilities as the trustees may from time to time determine.
8.2 A general manager may be appointed with overall responsibility for the administration of the trust, and such additional responsibilities as the trustees may from time to time determine.
8.3 Any director and general manager so appointed shall at all times be accountable to the trustees in the exercise of his or her duties.
9. FINANCE
9.1 General
Proper books of account of the trust must be kept. These books, together with all other papers and documents connected with or relating to the trust, must be kept at an office of the rust or such other place as may be agreed upon by the trustees and must at all times be accessible to each of them.
9.2 Bank Account
The trust must open an account at a bank or building society which shall be the operating account of the trust. If need be it may open an investment account, for the purpose of the investment of funds. Other accounts may be opened with the prior approval of the auditors appointed in terms of 11.6 below.
9.3 Receipts
All monies received by or on behalf of the trust must, on receipt thereof, be deposited in the trust’s bank account.
9.4 Payments
All payments to be made on behalf of the trust must be made by cheque drawn on the trust's bank account, and signed by two persons, one of whom must be a trustee, and one of whom may be a trustee, or the director, or general manager.
9.5 Cash expenditure
Notwithstanding the provisions of Clause 11.4 the trustees may from time to time maintain a cash float in an amount approved of by them in consultation with the auditor of the trust, and make payments from such float not exceeding the sum so approved.
9.6 Auditors
The trustees must immediately upon the coming into operation of this deed appoint an auditor or auditors who shall hold office for such period and subject to such conditions as may be determined by the trustees, and who may from time to time be replaced by the trustees, it being the intention, however that there shall at all times be an auditor of the trust. The auditors must have free and unhindered access to all the books of account, vouchers and records of the trust, and shall be entitled to require from the trustees, employees and agents of the trust such information and explanations as may be necessary for the performance of their duties as auditors.
9.7 Financial year
The financial year of the trust shall be from 1 March to 28 February of each year, and financial accounts must be prepared as at the end of each financial year.
9.8 Annual Financial Statements
The books of account and financial affairs of the trust must be audited, and the auditors must prepare a set of financial statements of the trust in respect of each financial year. A copy of the audited financial statements shall be submitted to each trustee and made available for inspection to the members of the community upon request.
10. DISPUTES
10.1 In the event of a serious disagreement amongst the trustees regarding the interpretation of this deed, any trustee shall be entitled to declare a dispute. Such declaration shall be in writing, stating the issue in dispute, and shall be addressed to the trust.
10.2 The trustees shall consider such declaration within two weeks of receiving it. Should the trustee not be able to resolve the dispute to the satisfaction of the person(s) declaring a dispute, the dispute shall either be referred to a mediator or arbitrator.
10.3 In the event that it is decided to refer the dispute to a mediator, the trustees must agree on a suitable mediator, and to the costs of such mediation. A mediator may recommend an appropriate resolution of the dispute.
10.4 In the absence of agreement regarding a mediator, the dispute may be referred to arbitration, if a majority of trustees are of the opinion that it would in the interests of the trust to do so, and are able to agree upon a suitably qualified person/s to conduct the arbitration.
10.5 The arbitration shall be held on an informal basis, and the arbitrator shall have the power to determine the procedure to be adopted subject to principles of natural justice.
10.6 The arbitrator may base his/her award not only upon the applicable law but also upon the principle of equity and fairness, having due regard to the nature of the matter in issue and the objects of the trust.
10.7 The decision of the arbitrator shall be final and binding upon all parties and capable of being made on Order of Court on application by any of them.
11. EXEMPTIONS & INDEMNIFICATION
11.1 The trustees shall be exempt from any obligation to furnish security in connection with their appointment and/or for the due administration of the trust to the Master of the Supreme Court or any other person, body or authority, as provided for in any law now in force or to come into force relating to trusts and the protection of trust monies, and the Master and any such other person, body or authority are hereby directed to dispense with such security.
11.2 A trustee shall not enter into a contract with the trust in which he or his business has an interest, or in his capacity as trustee, act in such a manner as to promote the interests of his/her employer, or any business in which he has an interest, save if such trustee has made full disclosure to the other trustees of any such interest.
11.3 No trustee shall be liable to make good to the trust or any member any loss occasioned or sustained by any cause, howsoever arising, except such loss as may arise from or be occasioned by a failure to show the degree of care, diligence and skill contemplated in section 9 of the Trust Property Control Act, No 57 of 1988, or his own personal dishonesty or other willful misconduct or gross negligence.
11.4 Subject to the provisions of any relevant statute:
11.4.1 no trustee shall be liable for any act of dishonesty or other misconduct committed by any other trustee unless s/he knowingly allowed it or was an accessory thereto;
11.4.2 the trustees shall be indemnified out of the trust fund against all claims and demands of whatsoever nature that may be made upon them arising out of the exercise or purported exercise of any of the powers hereby conferred upon them;
11.4.3 if the trustees in good faith make any payment to a person(s) whom they assume to be entitled thereto under the terms of this deed and it be subsequently found that some other person or persons is entitled thereto hereunder, the trustees shall nevertheless not be responsible for the monies so paid;
12. AMENDMENTS
The provisions of this deed may be amended by a resolution adopted by a majority of trustees voting at a meeting called specially for that purpose: provided further that thirty (30) days written notice of such proposed amendment is given to all trustees.
13. TERMINATION OF TRUST
13.1 This trust may be terminated by a majority of trustees at a meeting specially called for this purpose provided that:
13.1.1 not less than thirty (30) days notice of such meeting is given to all trustees.
13.1.2 in the event of a decision being taken to terminate the trust, then, if there remains any assets whatsoever after satisfaction of all the debts and liabilities of the trust such assets shall be paid or transferred to a trust(s) or body(ies) operating on a non-profit basis which the trustees, in their discretion, consider to have similar objects to the objects set out in this deed.
SIGNED AT:
DATE OF SIGNATURE:
WITNESSES 1:
2:
ANNEXURE A : TRUSTEES POWERS
1. Acquisition of Property
To acquire and hold, by purchase, lease, donation, bequest, in exchange or in any lawful manner whatsoever, any property (whether moveable or immovable, corporeal or incorporeal) and to sell, lease, donate, give in exchange or in any lawful manner dispose of such property.
2. Investment
From time to time, to invest all or any part of the trust fund, including the proceeds of any realisation of any property of the trust, in or with a financial institutions as defined in section 1 of the Financial Services Board Act, 1990 (Act no. 97 of 1990) or in securities listed on a stock exchange as defined in section 1 of the Stock Exchanges Control Act, 1985 (Act No, 1 of 1985) or first or further mortgage or notarial bonds over immovable or movable property, and to realise and vary any such investments from time to time;
3. Donations
To raise and accept donations or payments from any person or organization. Any donations or payments so accepted shall be deemed to form part of the trust fund in accordance with clause 3.3.;
4. Borrowing
To borrow from time to time such sums of money, on such terms and conditions as the trustees consider fit, with power from time to time to consent to any variations or alterations of the terms of any such borrowing, and to provide security for such borrowing;
5. Disbursements
To disburse the trust fund or any portion thereof in accordance with the provisions of this deed, in order to achieve the objects of the trust;
6. Bank Accounts
To open and operate accounts in banking institutions, building societies and other financial institutions, subject to the provisions of this deed, and to utilize such accounts for the purposes of the trust;
7. Trustee Expenses
To reimburse themselves from the trust fund for expenses actually incurred by them in the course of their duties;
8. Employment of Staff
To employ staff on a casual, temporary, or permanent basis to carry out the objects of the trust upon such terms and conditions as may from time to time be agreed, to pay their remuneration, and to terminate such employment;
9. Legal Proceedings
To call in, recover, collect and sue for all monies owing to the trust, to institute or defend legal proceedings and to sign all deeds, powers of attorney and other documents that may be necessary for any purpose;
10. Legal Documents
To sign and execute transfers and cessions of property, bonds, consents to cancellations of bonds, leases, servitudes and other deeds and powers of attorney relating thereto, and generally all documents of any nature whatsoever as may be necessary from time to time in connection with the acquisition, realisation, disposal or encumbrance of assets of or for the trust and the carrying out of the terms of this deed;
11. Contracts
To enter into contracts on behalf of the trust and to adopt and to accept benefits under contracts entered into for the benefit of the trust, whether before or after the creation of the trust;
12. Loans
To make secured or unsecured loans, or donations to the members of the beneficiary community , or to a person or persons other than a trustee or any relative of a trustee, for any purpose consistent with the objects of the trust, upon such terms and conditions as they may consider fit: provided that if any trustee or relative of a trustee is also an employee of the trust, then s/he shall not, in their capacity as an employee, be excluded from the benefit to which s/he would otherwise be entitled;
13. General
To do all things reasonably ancillary to the foregoing powers in order to efficiently and effectively to achieve the objects of the trust.
14. Limitation on powers in accordance with non-profit objectives
In accordance with its non-profit objectives and notwithstanding anything to the contrary in this trust deed:
14.1 The trustees shall not engage in any profit-making scheme involving trading operations or any speculative transactions;
14.2 The trust shall not:
14.2.1 acquire any immovable property solely for the purposes of letting and
deriving an income therefrom;
14.2.2 let any immovable property of the trust, save such immovable property
as may be donated to the trust;
14.2.3 permit or condone the rent free occupation of any land or buildings owned
by it from time to time by any person or organization, save for purposes which
are consistent with the objects of the trust;
14.3 The trustees shall not accept any donation which is unilaterally revocable at the instance of the donor thereof, or which seeks to impose a condition on the trust which is inconsistent with the terms and conditions of this deed.
14.4 The trustees shall not be entitled to any remuneration in respect of their services to the trust.