Sch 2Subsidiaries of joint planning boards

Schedule 2—Subsidiaries of joint planning boards 1—Application for Ministerial approval (1) A joint planning board proposing to establish a subsidiary of the board under this Act must apply to the Minister under this Schedule. (2) An application by a joint planning board for the approval of the Minister to establish a subsidiary must— (a) be in a form approved by the Minister; and (b) be accompanied by information required by the Minister; and (c) be accompanied by a copy of the proposed charter for the subsidiary. (3) A subsidiary comes into existence if or when the Minister, by notice published in the Gazette, signifies his or her approval of the establishment of the subsidiary. (4) The joint planning board must, in conjunction with the publication of a notice under subclause (3), ensure that a copy of the charter of the subsidiary is published on the SA planning portal. 2—Corporate status A subsidiary established under this Schedule— (a) is a body corporate; and (b) has the name assigned to it by its charter; and (c) has the powers, functions and duties specified in its charter; and (d) holds its property on behalf of the joint planning board. 3—Charter of subsidiary (1) A charter must be prepared for a subsidiary by the joint planning board. (2) The charter must address— (a) the purpose for which the subsidiary is established; (b) the constitution of a board of management as the subsidiary's governing body; (c) the powers, functions and duties of the subsidiary; (d) staffing issues, including whether the subsidiary may employ staff and, if so, the process by which conditions of employment will be determined; (e) whether the subsidiary is intended to be partially or fully self-funding, and other relevant arrangements relating to costs and funding; (f) any special accounting, internal auditing or financial systems or practices to be established or observed by the subsidiary; (g) the acquisition or disposal of assets; (h) the manner in which surplus revenue is to be dealt with by the subsidiary; (i) the nature and scope of any investment which may be undertaken by the subsidiary; (j) the subsidiary's obligations to report on its operations, financial position and other relevant issues; (k) other matters contemplated by this Schedule or prescribed by the regulations. (3) The joint planning board may include in the charter other matters that it considers to be appropriate. (4) The joint planning board must ensure that a copy of the charter is published on the SA planning portal. (5) The charter may be reviewed by the joint planning board at any time. (6) The joint planning board must, if it amends a charter— (a) furnish a copy of the charter, as amended, to the Minister; and (b) ensure that a copy of the charter, as amended, is published on the SA planning portal. 4—Appointment of board of management (1) Subject to the charter of the subsidiary, the membership of a board of management of a subsidiary will be determined by the joint planning board and may consist of, or include, persons who are not members of the joint planning board. (2) A board member will be appointed by the joint planning board for a term, not exceeding 3 years, specified in the instrument of appointment and, at the expiration of a term of office, is eligible for reappointment. (3) The office of board member becomes vacant if the board member— (a) dies; or (b) completes a term of office and is not reappointed; or (c) resigns by written notice to the joint planning board; or (d) becomes bankrupt or applies to take the benefit of a law for the relief of insolvent debtors; or (e) is removed from office by the joint planning board by written notice. (4) A board member must be appointed to chair meetings of the board of management. (5) On the office of a board member becoming vacant, a person may be appointed in accordance with this clause to the vacant office. (6) The joint planning board may appoint a suitable person to be a deputy of a board member and to act as a member of the board during any period of absence of the board member. (7) The joint planning board may give directions in relation to an actual or potential conflict of duty between offices held concurrently, or in relation to some other incompatibility between offices held concurrently and, if the person concerned complies with those directions, he or she is excused from any breach that would otherwise have occurred. 5—Validity of acts An act or proceeding of a board of management is not invalid by reason only of a vacancy in its membership or a defect in the appointment of a member. 6—Proceedings of board of management (1) A quorum of a board of management will be determined by the charter of the subsidiary. (2) The board member appointed to chair the board of management will preside at meetings of the board of management or, in the absence of that member, another board member chosen by those present will preside. (3) A decision carried by a majority of votes cast by board members at a meeting is a decision of the board of management. (4) Each board member present at a meeting of the board of management is entitled to 1 vote on any matter arising for decision and, if the votes are equal, the board member presiding at the meeting is entitled to a second or casting vote. (5) A telephone or video conference between board members will, for the purposes of this clause, be taken to be a meeting of the board of management at which the participating board members are present if— (a) notice of the conference is given to all board members in the manner determined by the board of management for that purpose; and (b) each participating board member is capable of communicating with every other participating board member during the conference. (6) A proposed resolution of the board of management becomes a valid decision of the board of management despite the fact that it is not voted on at a meeting if— (a) notice of the proposed resolution is given to all board members in accordance with procedures determined by the board of management; and (b) a majority of the board members express their concurrence in the proposed resolution in writing or by electronic communication. (7) A person authorised in writing by the joint planning board for the purposes of this clause may attend (but not participate in) a meeting of the board of management and may have access to papers provided to board members for the purpose of the meeting. (8) If a board of management considers that a matter dealt with at a meeting attended by a representative of the joint planning board should be treated as confidential, the board of management may advise the joint planning board of that opinion, giving the reason for the opinion, and the joint planning board may, subject to subclause (9), act on that advice as the joint planning board thinks fit. (9) If the joint planning board is satisfied on the basis of the board of management's advice under subclause (8) that the subsidiary owes a duty of confidence in respect of a matter, the joint planning board must ensure the observance of that duty in respect of the matter, but this subclause does not prevent a disclosure as required in the proper performance of the functions or duties of the joint planning board. (10) The board of management must have accurate minutes kept of its proceedings. (11) Subject to this clause, and to a direction of the joint planning board, the board of management may determine its own procedures. 7—Specific functions of board of management (1) The board of management of a subsidiary is responsible for the administration of the affairs of the subsidiary. (2) The board of management of a subsidiary must ensure as far as practicable— (a) that the subsidiary observes all plans, targets, structures, systems and practices required or applied to the subsidiary by the joint planning board; and (b) that all information furnished to the joint planning board is accurate; and (c) that the joint planning board is advised, as soon as practicable, of any material development that affects the financial or operating capacity of the subsidiary or gives rise to the expectation that the subsidiary may not be able to meet its debts as and when they fall due. (3) Anything done by the board of management in the administration of the affairs of the subsidiary is binding on the subsidiary. 8—Board members' duty of care etc (1) A board member must at all times act with reasonable care and diligence in the performance and discharge of official functions and duties, and (without limiting the effect of the foregoing) for that purpose— (a) must take reasonable steps to inform himself or herself about the subsidiary and relevant aspects of the operations and activities of the joint planning board; and (b) must take reasonable steps through the processes of the board of management to obtain sufficient information and advice about matters to be decided by the board of management or pursuant to a delegation to enable him or her to make conscientious and informed decisions; and (c) must exercise an active discretion with respect to all matters to be decided by the board of management or pursuant to a delegation. (2) A board member is not bound to give continuous attention to the affairs of the subsidiary but is required to exercise reasonable diligence in attendance at and preparation for meetings of the board of management. (3) In determining the degree of care and diligence required to be exercised by a board member, regard must be had to the skills, knowledge or acumen possessed by the board member and the degree of risk involved in a particular circumstance. (4) A board member does not commit a breach of duty under this clause by acting in accordance with a direction from the joint planning board. 9—Business plans (1) A subsidiary must, in consultation with the joint planning board, prepare and adopt a business plan consistent with its charter. (2) A subsidiary and the joint planning board must ensure that the first business plan of the subsidiary is prepared within 6 months after the subsidiary is established. (3) A business plan of a subsidiary continues in force for the period specified in the plan or until the earlier adoption by the subsidiary of a new business plan. (4) A subsidiary must, in consultation with the joint planning board, review its business plan on an annual basis. (5) A subsidiary may, after consultation with the joint planning board, amend its business plan at any time. (6) A business plan must set out or include— (a) the performance targets that the subsidiary is to pursue; and (b) a statement of the financial and other resources, and internal processes, that will be required to achieve the subsidiary's performance targets; and (c) the performance measures that are to be used to monitor and assess performance against targets. 10—Budget (1) A subsidiary must have a budget for each financial year. (2) Each budget of a subsidiary— (a) must deal with each principal activity of the subsidiary on a separate basis; and (b) must be consistent with its business plan; and (c) must comply with standards and principles prescribed by the regulations; and (d) must be provided to the joint planning board in accordance with the regulations. (3) A subsidiary may, with the approval of the joint planning board, amend its budget for a financial year at any time before the year ends. (4) A subsidiary may incur, for a purpose of genuine emergency or hardship, spending that is not authorised by its budget. (5) A subsidiary may, in a financial year, after consultation with the joint planning board, incur spending before adoption of its budget for the year, but the spending must be provided for in the appropriate budget for the year. 11—Subsidiary subject to direction by joint planning board A subsidiary is subject to the direction and control of the joint planning board. 12—Provision of information (1) A subsidiary must, at the request of the joint planning board, furnish to the joint planning board information or records in the possession or control of the subsidiary as the joint planning board may require in such manner and form as the joint planning board may require. (2) If the board of management of the subsidiary considers that information or a record furnished under this clause contains matters that should be treated as confidential, the board of management may advise the joint planning board of that opinion giving the reason for the opinion and the joint planning board may, subject to subclause (3), act on that advice as the joint planning board thinks fit. (3) If the joint planning board is satisfied on the basis of the board of management's advice that the subsidiary owes duty of confidence in respect of a matter, the joint planning board must ensure the observance of that duty in respect of the matter, but this subclause does not prevent a disclosure as required in the proper performance of the functions or duties of the joint planning board. 13—Reporting (1) A subsidiary must, at the request of the joint planning board, report to the joint planning board on any matter, and on any basis, specified by the joint planning board. (2) A subsidiary must, on or before a day determined by the joint planning board, furnish to the joint planning board a report on the work and operations of the subsidiary for the preceding financial year. (3) A report under subclause (2) must— (a) incorporate the audited financial statements of the subsidiary for the relevant financial year; and (b) contain any other information or report required by the council or prescribed by the regulations. 14—Internal audit (1) A subsidiary must establish and maintain effective auditing of its operations. (2) A subsidiary must establish an audit committee. (3) Subject to the regulations, an audit committee will comprise persons determined or approved by the joint planning board. (4) The functions of an audit committee include— (a) reviewing annual financial statements to ensure that they provide a timely and fair view of the state of affairs of the subsidiary; and (b) liaising with external auditors; and (c) reviewing the adequacy of the accounting, internal auditing, reporting and other financial management systems and practices of the subsidiary on a regular basis. 15—Delegations (1) A subsidiary may delegate a function or power conferred on or vested in the subsidiary— (a) to a particular person or body; or (b) to a person for the time being occupying a particular office or position. (a) may be made subject to conditions or limitations specified in the instrument of delegation; and (b) if the instrument of delegation so provides, may be further delegated by the delegate; and (c) is revocable at will and does not derogate from the power of the subsidiary to act in any matter. 16—Common seal A subsidiary must have a common seal and if a document appears to bear the common seal of the subsidiary, it will be presumed in the absence of proof to the contrary that the common seal of the subsidiary was properly affixed to the document. 17—Liabilities (1) Liabilities incurred or assumed by a subsidiary are guaranteed by the joint planning board. (2) A borrowing of a subsidiary requires the approval of the joint planning board (which may be absolute or conditional). 18—Winding‑up (1) A subsidiary may be wound up by the Minister acting at the request of the joint planning board. (2) A subsidiary is wound up by the Minister publishing a notice published in the Gazette. (3) Any assets or liabilities of the subsidiary at the time of winding‑up vest in or attach to the joint planning board on the winding‑up.