• Ten Things to Prevent Constitutional Drift Within NPOs

    1. Defining the constitution 
    South African nonprofit organisations (NPOs) can essentially be established through one of three structures, being; voluntary associations, nonprofit trusts and nonprofit companies. Each of these NPOs have different founding documents, namely: constitution for the voluntary association, trust deed for the nonprofit trust and memorandum of incorporation for the nonprofit company. The definition of ‘constitution’ in the Nonprofit Organisations Act includes a trust deed and memorandum of incorporation.   
    1. Binding nature of constitution   
    The constitution of a voluntary association, according to the courts, is founded on a contractual basis. It has the same binding power as, for example, a lease agreement. The constitution of a voluntary association, together with all its rules or regulations, is a legal contract entered into between its members. This legal contract: 
    • Determines the nature and scope of the NPO's activities, and
    • Regulates the rights of members. 
    Non-compliance with the constitution is breach of contract. Board members may be held liable in their personal capacity if they act beyond the scope and powers laid down in the constitution. 
    1. Governing in-line with constitution    
    The constitution should reflect how the NPO is governed. NPOs are basically governed with or without membership. Membership-based NPOs have a board together with general members. The general members normally issue resolutions that must be implemented by the board and will also appoint and remove board members. Some NPOs only have a board with no general members.
    Whatever the structure, the board takes full responsibility for the governance of the NPO and will themselves often appoint further board members but this can lead to the formation of cliques if it is not constitutionally applied. It is wise to ensure that solid reasons are clearly stated in the constitution for revoking membership or removal of office bearers. A right to appeal process should be available and respected.
    The governance structure of a NPO is a critical aspect and should be accurately dealt with in the constitution. 
    1. Using the Constitution   
    The constitution stipulates the meeting procedures and should be available at meetings of the board and members. The meeting procedures must be in-line with the requirements listed in the constitution. If not, such decisions can be void. During 2009 the Supreme Court of Appeal found that a voluntary association expelled a member unlawfully because the internal committee that expelled the member was not authorised or empowered to do so.
    For instance, the procedure and format for hosting an Annual General Meeting should be clearly outlined in the constitution and this must be applied each year. 
    1. Reviewing the Constitution   
    The NPO should review its constitution on a regular basis. This will help to ensure that:
    • It is consistent with relevant developments;
    • It mirrors the accuracy of why the NPO exists, its purpose, aims and objectives. This can change over time and come under scrutiny as new people join and want to broaden the scope.  Such situations occur after strategic planning sessions when new directions are agreed upon but may not align with the constitution;
    • The name of the NPO may have to change to reflect current activities. Names and acronyms can become offensive or misleading to other people, be sensitive;
    • Outdated legal requirements do not remain in the constitution. For example, some constitutions still have outdated tax conditions that are no longer required in terms of the Income Tax Act. These conditions can limit the activities of the NPO;
    • Organisational practices line up with the constitution. 
    1. Leading and sustaining the NPO   
    Election of office bearers can become slack over a period of time – friends co-opt each other, and the NPO may become cliquey. Follow the formal process; do not spin a bottle and say ‘you are it’! Terms of office should create stability for say three to four years.
    The composition of a board will depend on the nature of the NPO but as a minimum requirement there should be a Chairperson, Treasurer and Secretary, often referred to as the executive and most likely responsible persons for fiduciary duties. Keep in mind that any person who is in a fiduciary capacity responsible for the management or control of the income and assets of any approved public benefit organisation and who intentionally fails to comply with any provision of section 30 of the Income Tax Act or its Constitution, to the extent that it relates to that section, shall be guilty of an offence. 
    1. Simplifying the constitution 
    In some instances, a constitution runs into 50 pages or more, which is cumbersome.  Simplify things by writing statements and then refer to other documents. The same can apply to rules of procedures such as standing rules or bylaws. Also refer to Professional Codes of Ethics or Risk management procedures in the unlikelihood of financial distress or insolvency. 
    1. Meetings, quorums, decision-taking 
    The minimum number of people to attend a meeting, a quorum, should be set at a reasonable level and based on the largest number of members or board representatives that can be depended upon to attend the average meeting. Decision-taking will be delayed if an unrealistic quorum is required. If your NPO is experiencing similar challenges amend the constitution in the interest of advancement.   
    1. Growing with the constitution 
    A constitution is a central part of operations - it will outline mandates, membership rights, transparency, accountability and democratic principles. NPOs are dynamic and enter many phases from the birth of a great idea by the founders, onto youth-hood, through to adult-hood, then reaching maturity (sustainability) or possibly decline.  The different phases of growth may require reflection of the founding documents. 
    1. Spicing it up  
    Although the constitution is a legal document, there is no rule preventing the constitution from looking interesting and reflecting the character of the NPOs. Just insert a note that the cover page can be changed without having to change the constitution. Design a nice cover page for the constitution – make it psychedelic!
    - Ann Bown is a fundraising and sustainability consultant to nonprofit organisations,  Tel: 011 795 3271 or 083 271 0572, website:; Ricardo Wyngaard, Ricardo Wyngaard Attorneys, Tel: 021 975 8808, website:
    Ann Bown
  • Court Warned Against Minister’s Powers

    The Helen Suzman Foundation (HSF) has told the Constitutional Court that the police minister's powers to suspend the head of the Hawks are too broad and open to abuse.

    HSF’s David Unterhalter told the court the prescripts governing the power to suspend are vaguely defined, adding that, "Grounds of suspension are not specified."

    Unterhalter, who warned that, "An exercise of power without proper review is dangerous," argues that the minister's powers of suspension are not specified, and a suspension made on ‘a ministerial whim’ could disrupt the office of the Hawks, with ‘huge consequences’.

    To read the article titled, “Power without proper review is dangerous – HSF,” click here.

    News 24
  • CASAC Criticises Zuma Over Nkandla

    The Council for the Advancement of the South African Constitution (CASAC) says that President Jacob Zuma's failure to account properly on the Public Protector's report on his Nkandla homestead shows contempt for Parliament and for the Constitution.

    In a press statement, CASAC points out that, "The president should be allowed to complete his answers to the questions that had been tabled for answer on 21 August 2014, and to respond to any supplementary questions in the National Assembly.”

    Meanwhile, Public Protector, Thuli Madonsela, wrote that, "I am concerned that the decision you have made regarding the police minister gives him power he does not have under law, which is to review my decision taken in pursuit of the powers of administrative scrutiny I am given... by the Constitution."
    To read the article titled, “CASAC: Zuma showing contempt for Parliament,” click here.

    News 24
  • Madonsela: SA, An Unequal Society

    Public Protector, Thuli Madonsela, has described South Africa as one of the most unequal societies in the world.

    In a speech delivered at the University of Stellenbosch, Madonsela says the country is one of the most unequal society despite the constitutional promises which include the substantive notion of equality.

    "Compounding the situation is that poverty and unemployment have worsened and also the fact that, that too follows the contours of racial, gender and other forms of structural inequality or discrimination," she explained.

    To read the article titled, “SA most unequal society in the world: Madonsela,” click here.

    Times Live
  • Ban on Uganda’s Anti-Gay Law Welcomed

    The joint United Nations Programme on HIV/AIDS (UNAIDS) has welcomed the decision of Uganda's Constitutional Court to strike down a law banning the promotion of homosexuality punishable by life imprisonment.
    The anti-gay legislation was deemed null and void by the court on the technicality that it was not passed by a required parliamentary quorum.
    On the substance of Uganda's Anti-Homosexuality Act of 2014, there was no ruling from this court that struck down the law because not enough lawmakers had been present to vote on the bill, that aside, the decision was welcomed by UNAIDS executive director, Michel Sedibe, who called it a great day for social justice and where the rule of law had prevailed.
    To read the article titled, “UNAIDS welcomes Uganda anti-gay law ban,” click here.

    SABC News
  • No Gay Rights' Echos State - Minister

    Zambia has reiterated its position not to recognise gay rights, saying that ‘gaysm’ runs counter to the country’s culture and is an affront to the Constitution which recognises the country as a Christian Nation.

    The country’s foreign affairs deputy minister, Gabriel Namulambe, who also urged foreign missions accredited to Zambia to respect the views of the country about gay rights, says the country will abide by Christian values.

    "I want to make it very clear here that as Government, we have the Constitution to protect and in the preamble of our Constitution, Zambia is a Christian Nation and as such we live by the Christian values and we will not be able to recognise gay rights," he explained.

    To read the article titled, “No Gay Rights' Echos State,” click here.

    All Africa
  • SANEF: Info Bill Must Go to ConCourt

    The South African National Editors’ Forum (SANEF) calls for the Protection of State Information Bill to be sent to the Constitutional Court for ratification before it is signed into law.

    In a statement to mark International Press Freedom Day, SANEF’s chairperson, Mpumelelo Mkhabela, says a public interest defence clause in the Bill would truly enhance the ability of media to assist in the fight against corruption.

    Mkhabela notes that, “The Bill is arguably the biggest threat to press freedom and freedom of expression since the dawn of democracy. We stand ready to challenge it in court should the president sign it into law.”

    To read the article titled, “Info bill must go to constitutional court - SANEF,” click here.

    Mail and Guardian
  • Bill Raises Gay Alarm

    The Women Empowerment and Gender Equality Bill has been criticised in Parliament for not making provision for the advancement of gays and lesbians in the workplace.

    This emerged on 30 January 2014 during the second day of public hearings on the bill, which is being sponsored by the Department of Women, Children and People with Disabilities.

    In its submission, the Legal Resources Centre argues that the bill should not limit issues of gender equality and inequality as being issues between men and women, and girls and boys.

    Meanwhile, the Triangle Project, an organisation that campaigns against discrimination against lesbians, gays, bisexuals and other sexual minorities, objects to the bill's definition of ‘gender’ as unconstitutional.

    To read the article titled, “Bill raises gay alarm,” click here.

    Times Live
  • Scott Disappointed With NGOs

    Zambian vice president, Guy Scott, says he is disappointed that non-governmental organisations (NGOs) are causing commotion over the draft constitution.
    Dr. Scott explained that there is no new constitution and that what has been leaked is just a report on recommendations for the document.
    The vice president was responding to questions from teachers who wanted to find out what stage the new constitution had reached following the perceived impasse between government and civil society organisations.
    To read the article titled, “Some NGOs disappoint VEEP,” click here.

    Zambia National Broadcasting Corporation
  • Yacoob Calls for Freedom From Poverty in SA

    According to Zak Yacoob, a retired Constitutional Court judge, freedom from poverty in the South African context is one of the most important freedoms.

    Delivering the fifth annual Helen Suzman memorial lecture in Johannesburg, Yacoob, said that as South Africa's democracy moved towards its 20th anniversary, far too many of its citizens still suffer from poverty.

    "Unless we reach a situation where all of us agree on a particular minimum level of humanity and a particular threshold at [which] people would be able to live, and unless we commit ourselves to that, we will be doomed to disaster," he warned.

    To read the article titled, “Freedom from poverty important - judge,” click here.

    News 24
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