[rpd] Fwd: SC/COM/WRT/000454/2022

[Noah]

Hi AFRINIC RDL Participants,

Just to clarify that AFRINIC still has board directors as per the Mauritius
Company Act and Laws.  In fact there are currently five directors legally
who are registered members as per the Mauritius company Act. The Mauritius
Company Laws therefore recognizes the five directors. None of them has
resigned or been removed legally.

What is happening is that some AFRINIC resource members and to be
specific *Africa
on Cloud (PTY) *went to court and sought an Interim Injunction vs *Afrinic*
(SC/COM/WRT/000418/2022).

   - *The said order basically challenges the appointment of one of the
   five current directors and the matter is before court proceedings as its
   returnable date was 28 June 2022 where AFRINIC was to submit its defence.*

Another AFRINIC resource member and to be specific, *Crystal Web Pty* went
to court and sought an ex-parte application (SC/COM/WRT/000454/2022 Interim
Order) which is subject to response by the defendant AFRINIC Limited and
its CEO.  The new cases are updated at the bottom of this link here
https://www.afrinic.net/court-cases

   - *AFRINIC Limited and the CEO in the said order when you carefully read
   it have been given until  14th July 2022 to respond with their defence as
   the main correspondents in the matter.*

The AFRINIC provision bylaws section 19.6 here
https://www.afrinic.net/bylaws#b20-19 reads as below....

*19.6) Quorum - A quorum for a meeting of the Board shall be the majority
of Directors, which shall be not less than five (5) Directors.*

   1. *No business may be transacted at a meeting of Directors if a  quorum
   is not present, provided that, if a quorum is not constituted, the
   Directors present may adjourn the meeting. If a meeting is adjourned for
   more than 24 hours, notice shall be given to those Directors not present at
   the meeting at the time of adjournment. At the adjourned meeting, the
   Directors present, not being less than three in number, shall constitute a
   valid quorum.*

As such, since resource member, *Africa on Cloud* sought an Interim
Injunction that challenges the re-appointment of one of the current five
directors and the said challenge is still before court proceedings, AFRINIC
Limited in my understanding still has five directors until the court
determines otherwise after the proceedings. Since the business of the
company has been affected by the said proceedings, my understanding is that
the current board of directors/registered members/shareholders can approach
the courts to appoint an interim director so that the minimum requirement
for a quorum is met.

*See below reading the Mauritius Company Act here; *
https://companies.govmu.org/Documents/legislation/13sept2021/Companies%20Act%202021.pdf

--------------------------------------------------------------

*136. Court may appoint directors*
(1) Where -
(a) there are no directors of a company, or the number of directors is less
than the quorum required for a meeting of the Board; and
(b) it is not possible or practicable to appoint directors in accordance
with the company’s constitution or under section 140(3),

*a shareholder* or creditor of the company may apply to the Court to
appoint one or more persons as directors of the company, and the Court may
make an appointment if it considers that it is in the interests of the
company to do so.

(2) An appointment shall be made on such terms and conditions as the Court
thinks fit.
--------------------------------------------------------------

To this end, only the current five directors are recognized by the Laws of
Mauritius as *shareholders* since they are the only registered members of
the AFRINIC Limited who by law respresend the over 2000 AFRINIC resource
members who elected them. As such, any of them can lodge an application
before the court as they see fit for the courts to appoint interim
directors as soon as possible.

*The plaintiff Crystal Web Pty in this case should not be blowing their own
trumpets. *Going to court to lodge an ex-parte application and/or seek
interim orders does not mean that Justice has been served. AFRINIC Limited
has been given the opportunity by the courts as required by Law to
challenge all these orders and until they are dusted off, do not be misled
because Justice is two ways not one way folks.

As for the policies advanced by either the community or the board, their
ratification can only be done through a quorated board. Let us as PDP
participants stay focused as a lot is at stake but we must remain focused
on all gymnastics advanced by the various plaintiffs against AFRINIC which
only serves their own interests and not the interests of the wider AFRICAN
community and the Internet community so to speak.

Time will tell.

*./noah*
neo - network engineering and operations


On Fri, Jul 8, 2022 at 8:22 PM Paul Hjul <hjul.paul at gmail.com> wrote:

> I've noticed some discussion around the Board advancing policy changes. It
> is worth pointing out that the Supreme Court of Mauritius has accepted -
> and made an order including the fact - that as a matter of law Afrinic does
> not have a board: ""given that respondent no. 1 does not have a Board of
> Directors in existence as per the law". The email below has already been
> sent out to members and to community but its clear it has a bearing on a
> discussion going on in this list.
>
> The reference to the companies act and the validity of actions of
> directors is important but the conclusion is misplaced. The section is the
> reason a party who knows that a person is improperly appointed seeks an
> injunction. There are injunctions and this is public knowledge. It is quite
> dangerous to encourage people to purport to act as a board when the court
> is  engaged on the matter.
>
> An unfortunate consequence of the wrongful conduct of the Board in the run
> up to the AGMM is that the communities ability to develop policy is
> undermined. As with other lists I have to be more restrained than I
> ordinarily would be.
>
> Paul
>
> ---------- Forwarded message ---------
> From: Paul Hjul <hjul.paul at gmail.com>
> Date: Fri, 8 Jul 2022 at 17:50
> Subject: SC/COM/WRT/000454/2022
> To: AfriNIC Discuss <members-discuss at afrinic.net>, General Discussions of
> AFRINIC <community-discuss at afrinic.net>
>
>
> Hi all,
>
> Ordinarily I would be commenting on the litigation in either a personal or
> on behalf of the company capacity and I would be speaking about how
> important the Rule of Law and so on is. However as Crystal Web is a
> litigant and I am an affiant additional caution to avoid infringing on best
> practice around sub iudice is needed. Therefore other than putting out what
> is a matter for public domain which has not been otherwise released please
> don't expect reporting or comment from me.
>
> I have noted some fairly mischievously inaccurate straying from what the
> court ordered and it has simply reached a point at which instructions to
> caution as to ignoring the order and acting with contempt was reached and
> such letter issued.
>
> The attached is correspondence addressed by the attorneys acting on behalf
> of Crystal Web and is now public record. Hopefully it won't be necessary to
> take further steps but it shouldn't have been necessary for a Court to have
> to state the obvious fact that the Company does not as a matter of law have
> a Board. It should also not be necessary to issue a letter warning of
> contempt proceedings. Sadly it is.
>
> Moreover it is hoped that nobody will be fooled into ignoring the court
> order on some misguided nonsense. Quite simply there is no "but a director
> told me I could" defense against liability that would arise from ignoring
> the order that holds that the board is not as a matter of law in existence.
> It is public knowledge that the Board is not composed and that powers
> flowing from the Board cannot be exercised.
>
> I trust it will be understood that while ordinarily I'd happily comment
> and engage but under the circumstances the Mauritius attorneys and
> barristers have to do the talking.
>
> Paul
> Crystal Web (Pty) Ltd
> _______________________________________________
> RPD mailing list
> RPD at afrinic.net
> https://lists.afrinic.net/mailman/listinfo/rpd
>
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