Bush T May16

ZIMBALI NEWS
BOARD REPORT
ZEMA’s 19th AGM on 10 June 2016
The 2016 AGM will be held on Friday 10 June
2016 at the Bushbuck Club commencing at
09h00. Members’ AGM packs will be posted to
them 21 clear days prior to the AGM. The ZEMA
Board looks forward to a good turnout this
year and to updating Members on everything
that has happened in the past year. In the
meantime, there are a few important matters
that we would like to update Members on prior
to the AGM.
Rectification and Transfer on Initial
Cloudberry Contract
At last year’s 2015 AGM, we reported that before
we could facilitate the application to SARS to
qualify Cloudberry Investments 21 (Pty) Ltd
as a registered VAT vendor and apply for the
transaction to be zero-rated due to it being a
disposal of a going concern, a signed copy of
the new Cloudberry Sales Agreement had to be
included in the SARS application. At the time
of the AGM, ZEMA (whose management had
been authorised by the Directors of Cloudberry
Investments in November 2014 to administer
Cloudberry and manage all statutory
documentation) was awaiting THD and ZDC’s
signature to the new Cloudberry contract.
Unfortunately, in the weeks that followed, ZEMA
was unsuccessful in obtaining the signatures of
THD, ZDC and TIFAZ and, to this day, no official
explanation has been provided as to why those
parties were not prepared to sign. It is noted
that the TIFAZ signatory had signed the new
contract and had then officially withdrawn the
signature.
By the end of August 2015, when it became
clear that the above parties were not going
to sign the contract, the Board proceeded to
take steps to enforce the original Cloudberry
agreement on legal advice. The second
Cloudberry agreement was incomplete (due
to lack of signatures) and therefore the
Purchaser’s rights could not be enforced under
the second agreement at all. However, the
first (original) signed sales agreement dated
21 December 2007 remains valid and binding
and the Purchaser’s rights under it have
not prescribed. On that basis, the first sales
agreement was capable of rectification, subject
to Cloudberry (the Purchaser) being able to
prove the requirements of rectification. As
such, Cloudberry can proceed legally to obtain
rectification as long as it can be illustrated
that the common intention of the parties was
to incorporate all the properties in the first
sales agreement, including those that had
subsequently been added to the second sales
agreement. Since the property annexures had
voluntarily been added by the Seller (ZDC) to
the second agreement, it can easily be proved
that the Seller had intended to include these
properties initially and that they had simply
been omitted in error by the parties to the first
sales agreement.
A letter was sent to ZDC on 9 March 2016
requesting rectification of the first agreement
and for ZDC to proceed with the transfer of the
properties to Cloudberry. At the time of writing
this article, no response from ZDC has been
received.
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