[Community-Discuss] Removal of a director

[Andrew Alston]

Alan,

The problem here is this:

The company cannot pick and choose at will which are which.  There are MANY rights which are – by the companies act – assigned to the resource members that would normally apply to the shareholders.  Yet this board seems to want to pick and choose which rights belong to them and which rights belong to the resource members at will and in the moment.

By the companies act – it is the registered members who constitute an AGMM – it is the registered members who choose their directors – it is the registered members who agree the financials – it is the registered members and the registered members alone who have *ALL* the power – including the ability to change the constitution at will.

The PDP has no recognition in law – yet we choose through the bylaws to tie members to it legally via the RSA.  We sit in a situation where AfriNIC can turn around and say – we don’t have a transfer policy because the PDP has not given us one – and despite the fact that the lack of such a policy may well constitute a violation of the competitions act – a question which this board STILL has not addressed to this community – the board chooses to say that they are the registered members and hold all the responsibility and power.  Well – If that is the case – then the board has a duty to act within the law and give us a transfer policy if the competitions act problem is real (and this WILL be tested in due course)

Virtually every right assigned by section 7.6 of the bylaws is actually the right of a shareholder – so – let us be consistent – either the resource members are effective shareholders by our modus operadi – or – we aren’t and the board is in total power and total control – and with that – must accept *ALL* liability and *ALL* responsibility.  But it cannot be some weird mix where the board chooses at will what responsibilities and what liabilities they hold based on some fuzzy concepts that are ill defined.

Andrew


From: Alan Barrett <alan.barrett at afrinic.net>
Date: Tuesday, 19 December 2017 at 04:55
To: General Discussions of AFRINIC <community-discuss at afrinic.net>
Subject: Re: [Community-Discuss] Removal of a director

[removing cross-posting; this is off-topic for rpd]

> On 18 Dec 2017, at 16:15, Sander Steffann <sander at steffann.nl> wrote:
>
> Many of the details depend on whether legally Resource Members are seen as shareholders of Afrinic, or if only the 9 Registered Members (= the board) are considered as such. It is a question that I honestly have no answer to, and although Andrew expressed his opinion, he does note that he is not a lawyer and would like independent legal counsel on the matter.

I think it’s pretty clear. AFRINIC is registered in terms of the Companies Act of Mauritius <http://attorneygeneral.govmu.org/English/Documents/A-Z Acts/C/Page 2/COMPANIES ACT.pdf<http://attorneygeneral.govmu.org/English/Documents/A-Z Acts/C/Page 2/COMPANIES ACT.pdf>> as a company limited by guarantee. Such companies do not exactly have shareholders, they have members. The nine Directors are registered as members of the company.

Alan Barrett


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