March 17, 2008
Dear Ms Koetsier
Your Letter of 2 February 2008 – To the Executive Committee of the Marina Da Gama Association
We refer to the above letter relating to a meeting held on 2 February 2008 between yourself with your brother and Toni Joubert, Elaine Meyer and Bob Craske. The open items of that meeting have been addressed to you in a separate letter.
You attached a list of perceived shortcomings you had identified with the constitution.
These were raised by you in 2006 and were fully addressed at that time.
However, as with all questions relating to the constitution, any Home Owners Association Constitution is the property of the members of the association and can only be changed by them. If any member wishes to do this the Annual General Meeting is the forum to do it. An ExCom cannot change the constitution, it is solely up to the members.
You have raised the question of the legality of the constitution.
`The Planning Department’s Report to Council on the changes made to the Constitution of the Marina da Gama Association’
reads as follows:-
Legal Issues.
“The city’s records unfortunately, do not reflect when the said Association was formed and whether or not the Constitution for the Association was ever formally approved”
“However, Section 29(3) of the Land Use Planning Ordinance 15 of 1985 (LUPO) states that a “A home owners’ association which came into being by virtue of a condition imposed under the Townships Ordinance, 1934 (Ordinance 33 of 1934), and which exists at the commencement of this Ordinance, shall be deemed to be a home owners’ association which came into being by virtue of the provisions of subsection (1) of this section. ” “
“So whilst it must be assumed that no formal approval for the constitution has issued, the Association as well as its constitution are deemed valid in terms of the aforesaid legislation.”
The Marina da Gama Association and its constitution are therefore valid.
You state that ‘in the unlikely event that you are able to prove the legitimacy of the Constitution, the changes thereto were not voted in lawfully’
The constitution is proven legitimate and the Planning Department Report went on to state:
Legal Issues
“The submissions made to Council show that the resolutions to amend the constitution as proposed were properly adopted at duly constituted meetings of the association in terms of the current constitution, which as has been discussed, is deemed to be a valid constitution in terms of the Land Use Planning Ordinance 15 of 1985 “.
“In this regard, it is noted that the approval of the proposed amendments do not specifically impose or approve the security plan proposed by the association, but merely allow for the members of the Association to implement a security plan, if they so wish “.
“A copy of the proposed amendments has been referred to the Legal Advisor who has no objection to the proposed amendments. Furthermore, it is the opinion of the Head or Legislation and Enforcement that the amendments proposed to clauses 4.1, 5.4, and12 are a private matter between the members of the Association “
Conclusions
Reasons for support
“The approval of the application as proposed is not deemed to have a detrimental effect on the members of the Marina da Gama Association and the proposals have been supported by Council Legal Department.”
It is completely clear, from the above, that the councils’ Legal Department were satisfied that the correct procedures were followed, and that there was no detrimental effect on the membership of the association.
We believe that you may already have a copy of the report from the Planning Department but attach a copy in order that you can publish it.
Council have repeatedly said that the resolution of the Sub-Council meeting is a mere recommendation and confirmed this publicly in an address by the Manager of the Sub-Council to the AGM.
You ask for ExComs’ official comments on statements made by individual members of past Executive Committees and also from third party comments to objectors.
The members of the Executive Committee are nominated as individuals at Annual General Meetings or can be co-opted on to an elected committee when required. They are nominated by paid up members of association and accept to serve on a voluntary basis until the next AGM. They come from all corners of the Marina. The current committee has three members from the Uitsig Peninsula, two from Cannon Island, three from Park Island and two from Eastlake. Some members do not serve their full terms as personal or business reasons may dictate. The committee, from your own comments, is constantly changing, and in a dynamic and fluid manner. The current committee has 50% new members from last year, so new ‘blood’ is introduced to ensure that views of all can be represented.
In view of this, to ask the current committee to form a collective view on statements which are up to two years old, and hence two previous committees past would be unfair and impossible. Making value judgements on bare statements without context, under such conditions, would be beyond the Wisdom of Solomon. To assume that it could be done should invoke the same sentiment.
It is time for all to move forward in the best interests of the community that we all live in.
You thank us for the invitation to write an article for the Marina News and our assurance that the article would be published, you were not given and we cannot give any assurance as to publication, that is up to the editor. It was explained that we do not review articles for publication.
It is worth noting that the very first act of members of the current committee was to contact you immediately after the AGM; before you left the hall, and that we met you at someone’s home as you said that you would be unhappy at the office. It was a genuine effort to build bridges.
Yours Sincerely
The Marina Da Gama Association P.O. Box 121
Muizenberg
7950
Executive Committee
The Marina da Gama Association
-oOo-
I have read the Executive Committee’s official response to my letter and am very disappointed. The letter has no substance, it says nothing, it proves nothing and the most illogical part thereof is that the Executive Committee keeps on clinging to a Council report which has been rejected in its entirety, both by the sub-council committee and by Council’s Legal Department. Unbelievable!!
Well, I have news for them. This matter has not been dealt with adequately. Not by a long shot. You can fool some people some of the time, but you cannot fool all of the people all of the time. The Executive Committee hangs the future of the Association on the basis of a report written by a Council official who was under severe political pressure and who was very relieved that his report had been rejected out of hand and that the constitution has still not been ratified by Council.
In the end, no matter how fast the lie runs, the truth will always catch up and this Executive Committee has still not been able to prove the legitimacy of the constitution. It was foisted on home-owners in Anglo’s time and it was foisted on home-owners after Anglo left and has never been adopted in it’s entirety at an AGM.
As for commenting on the quotes in my letter, we have no idea what the views of the Executive Committee is. If indeed it is the Committee’s intention to build bridges, the current Committee must explain what its views are. Please note that 12 out of the 17 quotes were written by currently serving committee members and are inexcusable, regardless of the context in which it may have been placed. An explanation is therefore not an unreasonable request. I can however see why you would think that it would take the Wisdom of Solomon to explain away these insults to the community.
The committee is however clearly not prepared to accept responsibility for its actions and shifts the blame from one to the other. If it is true that the committee “does not review articles for publication” I suggest that you not only fire the editor of the Marina News, but also the people currently still serving on the Executive Committee who have written such disrespectful, unacceptable rubbish.
In conclusion, I will still write that article for the Marina News, but now doubt that it will be published. Once again the Committee has backtracked on its promises. Thank goodness for Warren who has made this website available to us as at least those of us with access to the internet will be able to read the article here. Thank you Warren.
Anita
4 users commented in " ExCom’s long-awaited, disappointing reply "
Follow-up comment rss or Leave a TrackbackThe arrogance is astounding. 400 people were not officially notified of the meeting, yet the changes stand.
They say the most atrocious things, and merely walk away saying: “Hey, it’s not me, it’s the personal views of someone else, regardless if he is the Chairman of the committee I belong to.”
If they want us to move forward, they have to admit their mistakes and correct them before arrogantly pushing through with changes based on those mistakes.
This association sucks and as far as I am concerned, they must bugger off.
Ps. Would love to join you at the Human Rights Commission.
How odd. The MDGA claim here that “…any home owners association constitution is the property of the members of the association and can only be changed by them. If any member wishes to do this the Annual General Meeting is the forum to do it…”
Weren’t the 2006 amendments to the constitution voted on at an ordinary general meeting?? And these were amendments that altered the objects of the association and basis of recovering monies from its members - very significant changes that should have been addressed at an Annual General Meeting no less.
I have not been in town and have only now had a chance to look at the website again.
Well done to Anita and co. for managing to get the Human Rights Commission on board. Mediation is necessary.
I have read the Executive Committee’s response to Anita’s letter and it is a load of bs. Council’s report was rejected when they resolved that the Association first get a proper public participation process on the go. I do agree with them about is that “It is time for all to move forward in the best interests of the community that we all live in.” But, in order to move forward, we first have to correct the mistakes, and, from what I understand, there were many.
It is important to note that around 400 members were not informed of the meeting at which the changes to the constitution were voted in. I am one of those members. That is a significant number of people. It does not matter if it was the most well attended meeting in the history of the Marina, what matters is that 400 member were not notified of the meeting. This makes the meeting unlawful, regardless of who else attended and the decisions taken thereat cannot be binding. If the Association want to keep the changes voted in at the meeting, they will have to call another meeting, table the issue again, and get a new mandate to change the constitution. Of course, this time inviting every single homeowner.
If what Anita says is correct and this constitution has never been approved or adopted by the members at an AGM. This needs to be rectified. It cannot just be ignored, as it will raise all kinds of questions in the future. So the Executive Committee will have to see that this happens. Call a meeting and have it adopted. Get the mandate you say you have and walla, no more problems.
It is extremely short-sighted of the Executive Committee not to see that you cannot build a secure future based on such major oversights. It will just lead to endless problems in the future, so if you want to move forward, do it pro-actively and correct the mistakes. Then you can securely move forward, knowing where you stand.
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