Dear Alan,
I am only replying to you on this as I advise the Board only.It is only
during an AGMM, when called upon, that i intervene.
You are right in stating that the Company's Act takes precedence over
the bylaws.
I recall that after the Cairo election, the Community felt that bringing
a substantial number of proxies especially from a particular region
where AFRINIC membership was dense could not from a "community "
perspective give the best representation for the Africa regions.This is
why the limitation of the number of proxies was introduced and voted by
the community.
This provision of the bylaws would in no way withstand legal challenge
as suggested by Andrew.
Regards
Ashok.
On 29/09/2016 22:29, Alan Barrett wrote:
On 29 Sep 2016, at 22:09, Andrew Alston <andrew.als...@liquidtelecom.com> wrote:
I am also far from convinced that the limitation on proxies would stand up to
legal scrutiny and I would like to hear informed legal opinion on this.
The fifth schedule of the companies act – clause 6, makes specific references
to proxies – and is explicit that any member may appoint anyone as a proxy.
What the Mauritius Companies Act refers to as Members corresponds to what the
AFRINIC Bylaws refer to as Registered Members.
It also has a very specific clause in the companies act that states that the
entirety of clause 6 applies “not withstanding any provision in any
constitution adopted by the company.” The only exception to this is clause 6
(d)(v) which makes reference to the format of the actual proxy.
My reading of this – and again, I would like to hear informed legal opinion, is
that limitations on the proxy instruments that could impact on anyone
appointing a proxy of their choice would be out of line with the companies act
– and hence the limitation in our bylaws is illegal and cannot be enforced –
since it is overridden by the act – which reigns supreme.
Can any lawyers on this list please comment on the above?
I am not a lawyer, but I would assume that the Companies Act may override the
Bylaws on matters relating to Directors and Registered Members, but not on
matters relating to Resource Members (which is an AFRINIC construct that is not
reflected in the Companies Act).
Alan Barrett
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