[Community-Discuss] Accountability assessment - quorum

Ashok Radhakissoon ashok at afrinic.net
Fri Sep 30 11:27:17 UTC 2016

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.

On 29/09/2016 22:29, Alan Barrett wrote:
>> On 29 Sep 2016, at 22:09, Andrew Alston <Andrew.Alston at 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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