Founding Affidavit and Annexures

5 of 5 22. Nature of Payment In making any payment at any time out of any portion of the Trust Fund in terms of this Deed, the Trustees shall be entitled in their discretion to make any such payment either in cash or in securities or partly in cash and partly in securities. For the purposes of this paragraph the expression "securities" shall include any asset at that time held as portion of the Trust Fund including immovable property and which is in a form other than cash money. Furthermore,before distributing any portion of the Trust Fund, even if such portion may already have vested in a Beneficiary, the Trustees shall be entitled to realise or otherwise deal with such portion in terms of the rights and powers granted to them hereunder, and thereafter to distribute cash equal in value (or a combination of both) to the portion to be so distributed 23. Cession of Interests The interest of any Beneficiary in terms of this Trust shall not be capable of being ceded, assigned, transferred, pledged, hypothecated or in any way alienated by him without the prior written consent of the Trustees 24. Attachment of Interests The rights,benefits or interest conferred on any Beneficiary under this Deed shall not be capable of being exercised or claimed in any way by anybody other than such Beneficiary or of being attached at the instance of any creditor or of vesting in any otherperson whomsoever in any capacity 25. Right to sue and defend The Trustees shall be entitled to sue and be sued in any Court having competent jurisdiction in respect of any matter arising out of the Trust,and all costs incurred by the Trustees as well as any other charges, expenses and disbursements incurred by them in or arising out of their administration of the Trust shall be a first charge on the Trust Fund and the income thereof 26. Variation All or any of the provisions and regulations of this Trust Deed may be varied by agreement in writing between the Donor and the Trustees,provided always that,notwithstanding anything to the contrary hereinbefore contained, the provisions of this Trust Deed may not be varied in such a way as to make it competent for the Donor to dispose of any part of the Trust Fund for the benefit of itself or for any one or more of the Trustees of this Trust for the time being to dispose of any part of the Trust Fund for the benefit of himself/herself or his/her estate 27. Execution of Deeds All deeds, documents or instruments required to be executed by the Trustees shall be deemed to have been validly executed if executed in the name of the Trust by such number of Trustees as the Trustees may determine by means of resolution 28. Exclusion of Rights Until any benefit or award is actually paid over to a Beneficiary nothing herein contained nor any resolution, deed or act of the Trustees shall create or confer upon any person any right or claim enforceable at law to any benefit or award hereunder 29. Interpretation 29.1 In this document, the headings have been inserted for convenience only and shall not be used for nor assist or affect its interpretation. 29.2 Notwithstanding the aforegoing, should any question arise as to the interpretation of this Trust Deed or any of the provisions hereof or as to the construction thereof oras to the administration of the Trust Fund hereunder or otherwise howsoever, the Trustees shall have power to decide such question either acting on their own judgment or upon the advice of Senior Counsel, and any such decision shall be final and binding on all parties Dispute Resolution and Arbitration 9.3. The decision of a majority of Trustees shall be deemed to be the decision of them all. Any deadlock which may arise between the Trustees shall be submitted to a referee who shall be a Senior Counsel practising at the Pretoria or Johannesburg Bar, and who shall failing an agreement between the Trustees as to the appointment within 10 days after the deadlock has arisen, be nominated by the Chairman or acting Chairman of the Johannesburg Bar Counsel. Any Trustee shall be entitled to appear personally or by a single agent duly appointed but without any legal or other professional assistance before the referee and the proceedings shall be conducted as informally as possible. The provisions of the Arbitration Act 1965 or any statute that replaces it shall not apply. The decision of the referee shall be final and binding on the Trustees and no Trustee or Beneficiary shall make such decision the subject of any legal proceedings. Amended and restated Trust Deed Reasons for material differences a) Amended as a result of the personal nature of the vested benefits. *To the extent any differences between the provisions of the existing Kganya Benefits Fund Trust Deed and the amended and restated Kganya Benefits Fund Trust Deed have been identified that do not adversely affect the rights of the members to the Kganya Benefits Fund Trust, such changeshave been marked in orange in the corresponding cells below. ** To the extent any differencesbetween the provisions of the existing Kganya Benefits Fund Trust Deed and the amended and restated Kganya Benefits Fund Trust Deed have been identified that do adversely affect the rights of the members to the Kganya Benefits Fund Trust, such changes have been marked in red in the corresponding cells below. *** Material differences or changes indicated in red shading shall be accompanied by a letter referencing the material difference or change in the marked column and the corresponding letter referencing such material difference or change will be accompanied by an explanation for the material difference or change. **** Capitalised terms used in this comparison shall have the meaning ascribed to them in the documents considered in this comparison, unless indicated otherwise Kganya Benefits Fund Trust Deed 30. Nature of Payment 30.1 In making any payment at any time out of any portion of the Trust Fund in terms of this Trust Deed, the Trustees shall be entitled in their discretion to make any such payment either in cash or in securities or partly in cash and partly in securities. For the purposes of this clause the expression "securities" shall include any asset at that time held as portion of the Trust Fund including immovable property and which is in a formother than cash money. 30.2 Furthermore,before distributing any portion of the Trust Fund, even if such portion may already have vested in a Trust Beneficiary, the Trustees shall be entitled to realise or otherwise deal with such portion in terms of the rights and powers granted to them hereunder, and thereafter to distribute cash equal in value (or a combination of both) to the portion to be so distributed 31. Cession of Interest The interest of any Trust Beneficiary in terms of this Trust shall not be capable of being ceded, assigned, transferred, pledged, hypothecated or in any way alienated 32. Attachment of Interests The rights,benefits or interests conferred on any Trust Beneficiary under this Trust Deed shall not be capable of being exercised or claimed in any way by anybody other than such Trust Beneficiary or of being attached at the instance of any creditor or of vesting in any other person whomsoever in any capacity 33. Right to Sue and Defend The Trustees shall be entitled to sue and be sued in any Court having competent jurisdiction in respect of any matter arising out of the Trust,and all costs incurred by the Trustees as well as any other charges, expenses and disbursements incurred by them in or arising out of their administration of the Trust shall be a first charge on the Trust Fund and the income thereof 34. Variation All or any of the provisions and regulations of this Trust Deed may be varied by agreement in writing between the Donor and the Trustees,provided always that,notwithstanding anything to the contrary hereinbefore contained, the provisions of this Trust Deed may not be varied in such a way as to make it competent for the Donor to dispose of any part of the Trust Fund for the benefit of itself or for any one or more of the Trustees of this Trust and/or his/her Estate. 35. Execution of Trust Deed All deeds, documents or instruments required to be executed by the Trustees shall be deemed to have been validly executed if executed in the name of the Trust by such number of Trustees as the Trustees may determine by means of resolution. 36. Interpretation 37.1 In this document, the headings have been inserted for convenience only and shall not be used for nor assist or affect its interpretation. 37.2 Notwithstanding the aforegoing, should any question arise as to the interpretation of this Trust Deed or any of the provisions hereof or as to the construction thereof oras to the administration of the Trust Fund hereunder orotherwise howsoever, the Trustees shall have power to decide such question either acting on their own judgment or upon the advice of an independent valuer, auditor, lawyer,advocate or actuary of at least 10 (ten) years' standing, and any such decision shall be final and binding on all parties 26. Dispute Resolution 26.1 Save as otherwise provided in this Trust Deed, any dispute arising out of or in connection with this Trust Deed or the subject matter hereof including, without limitation, any dispute concerning: 26.1.1 the existence and/or validity of the Trust Deed apart from this clause; and/or 26.1.2 the interpretation and carrying into effect of the Trust Deed; and/or 26.1.3 the Parties' respective rights or obligations under or arising from the Trust Deed; and/or 26.1.4 the rectification or proposed rectification of the Trust Deed; and/or 26.1.5 the breach or termination or purported termination of the Trust Deed or any matter arising out of the breach or termination; and/or 26.1.6 damages in delict, compensation for unjust enrichment or any other claim, whether or not the rest of the Trust Deed apart from this clause is valid and enforceable, hereinafter collectively referred to as "a Dispute" shall be resolved in accordance with the provisions of this clause 26. 26.2 In the event of a Dispute arising, a written notice of such Dispute must be delivered to the Trustees ("a Dispute Notice"), which Dispute Notice shall refer to the Dispute that has arisen. 26.3 Within 10 (ten) business days of delivery of the Dispute Notice, the Trustees shall hold a meeting ("the Initial Dispute Meeting") in an effort to resolve the Dispute, which meeting may be held by telephone and which shall be attended by the Bishop and the majority of the remaining Trustees. 26.4 If the Dispute is not finally resolved within 20 (twenty) business days after the delivery of a Dispute Notice, irrespective of whether an Initial Dispute Meeting has been held or not, any Trustee may refer the Dispute for arbitration, as contemplated in clause 27 of this Trust Deed by written notice to the remaining Trustees ("the Arbitration Notice"). 27. Arbitration 27.1 Separate, divisible agreement This clause 27 is a separate,divisible agreement from the rest of this Trust Deed and shall: 27.1.1 not be or become void, voidable or unenforceable by reason only of any alleged misrepresentation, mistake, duress, undue influence, impossibility (initial or supervening), illegality, immorality, absence of consensus, lack of authority or other cause relating in substance to the rest of the Trust Deed and not to this clause. The Trustees intend that any such issue shall be subject to arbitration in terms of this clause; and 27.1.2 remain in effect even if the Trust Deed terminated. 27.2 Disputes subject to arbitration In the event of receipt of an Arbitration Notice, the Dispute shall be decided by arbitration as set out in this clause 27. 27.3 Appointment of arbitrator 27.3.1 The Trustees shall agree on the arbitrator who shall be a practising attorney or practising advocate on the panel of arbitrators of AFSA, who must at least have least 15 (fifteen) years practical experience. If agreement is not reached within 10 (ten) days after receipt of an Arbitration Notice, the arbitrator shall be an attorney or advocate nominated by the Registrar of the Arbitration Foundation of South Africa for the time being. 27.3.2 The request to nominate an arbitrator shall be in writing outlining the Dispute and, if desired, suggesting suitable nominees for appointment,and a copy shall be furnished to the other Trustees who may,within 7 (seven) days, submit written comments on the request to the addressor of the request. 27.4 Venue and period for completion of arbitration The arbitration shall be held in Polokwane and the Trustees shall endeavour to ensure that it is completed within 90 (ninety) days after notice requiring the claim to be referred to arbitration is given. 27.5 Arbitration Act - rules The arbitration shall be governed by the Arbitration Act, 42 of 1965 or any replacement Act and shall take place in accordance with the Commercial Arbitration Rules of AFSA. 27.6 Application to court for urgent interim relief The provision of this clause 27 will not preclude any Trustee from access to a court of competent jurisdiction for urgent and/or interim relief pending the outcome of an arbitration in terms hereof or in respect of arbitration proceedings in terms hereof