The Companies Act, 71 of 2008 (“the Act“) expressly provides that the business and affairs of a company must be managed by or under the direction of the board of directors (“the Board“), which has the authority to exercise all of the powers and perform any of the functions of the company. This general authority of the Board is curtailed by other provisions of the Act and may also be limited in terms of a company’s Memorandum of Incorporation (“MOI“). Following on from our previous article that dealt with shareholders’ meetings, this article explains the purpose and importance of meetings of the Board by deconstructing them under three basic questions: “Why, When and How?“.
The directors of a company are required to exercise their powers to ensure effective management of the company by passing resolutions at meetings of the Board. These meetings must be properly convened – meaning that notice of the meeting must be given to each of the directors and a quorum must be present before any meeting may commence or any matter may begin to be considered. See “How?” below for more information regarding the notice and quorum requirements.
Given that directors hold a fiduciary position to exercise duties of care, skill and diligence towards the company, to act in the best interests of the company and not their own financial interest (as opposed to shareholders who are entitled to act in their own self-interest), Board meetings are subject to far less regulation in the Act than shareholders’ meetings. As directors are expected to have a level of qualification and experience, the Act is not overly prescriptive with regard to the manner in which Board meetings are convened and administered.
A Board meeting may be called at any time by a director of the company who is authorised to do so by the Board. In addition and subject to the provisions of the company’s MOI, which may specify a higher or lower number of directors, a Board meeting must be called if required by at least 25% of the directors (where the Board has 12 or more members), or at least 2 directors (where the Board has fewer than 12 members).
Notice: The Act provides that the form of notice to be given to directors and the notice period may be determined by the Board in its discretion. The further relevant provisions are as follows:
- notice must be given to all directors, otherwise a Board meeting may not be convened;
- the form and notice period for giving the notice as determined by the Board must comply with any provisions of the MOI or rules of the company dealing with Board meetings;
- if all the directors of the company acknowledge actual receipt of the notice, are present at the meeting, or waive notice of the meeting, the meeting may proceed even if the company failed to give notice of the meeting, or if there was a defect in the giving of the notice (unless the MOI provides otherwise); and
- where no specific time periods are prescribed in the MOI for the calling of a Board meeting, fair and reasonable notice must be given to each director.
Quorum: The default quorum for a Board meeting is the majority of directors, unless the MOI states otherwise. If a director has a personal financial interest (i.e. a direct material interest of that person of a financial, monetary or economic nature, or to which a monetary value can be attributed) in a matter to be decided at a Board meeting, section 75(5) of the Act sets out the steps that an interested director must take in such situation, namely, the director:
- must disclose the interest and its general nature to the Board before the matter is considered at the meeting;
- must disclose any material information relating to the matter and known to the director to the Board;
- may disclose any observations or pertinent insights relating to the matter to the Board if requested to do so by the other directors;
- must leave the meeting immediately after making any relevant disclosure;
- must not take part in the consideration of the matter; and
- must not execute any document on behalf of the company in relation to the matter unless specifically directed to do so by the Board.
While a director is absent from a meeting due to following the above process, he / she will be regarded as being present for the purposes of determining whether a quorum is present, but will not be regarded as being present at the meeting for the purpose of determining whether a resolution has sufficient support to be adopted.
Voting: Each director has one vote on a matter before the Board and a majority of votes cast on a resolution is sufficient to approve the resolution, except to the extent that the MOI provides otherwise. In addition, in the case of a tied vote, the chairperson of the Board will hold a casting vote only if he or she did not have or did not cast a vote initially, but in any other case, the matter being voted on will fail (unless the MOI provides otherwise).
Minutes and resolutions: A company must keep minutes of its Board meetings in order to verify the business that was discussed and resolved at the meeting. The minutes must include every resolution adopted by the Board and any declarations given by notice or made by a director regarding the director’s financial interests in any matter. Resolutions adopted by the Board must be dated and sequentially numbered and are effective as of the date of the resolution, unless the resolution states otherwise. Every company must maintain the minutes of all meetings and resolutions of directors for a period of 7 years after the date of each meeting or the date on which the resolution was adopted. Furthermore, these records must be accessible from the company’s registered office or another location within South Africa (by filing a notice setting out the alternative location).
Electronic communication and written resolutions (round robin resolutions)
Except to the extent that the Act or MOI provides otherwise, Board meetings may be conducted by electronic communication, provided that the electronic communication allows all meeting participants to participate reasonably effectively in the meeting and to communicate concurrently with each other without an intermediary.
The Act also provides that any decision that could be voted on at a formal meeting of the Board, may instead be adopted by written consent of a majority of the directors, which consent may be given by that director in person or by electronic communication. Decisions may only be passed in this manner if every director has received notice of the matter to be decided. Such written resolutions have the same effect as if they had been approved by voting at a formal meeting of the Board.
Our highly-skilled company secretarial and corporate governance unit here at Dommisse Attorneys will be glad to assist you with any queries or assistance you may need with regard to the convening and administering of your company’s Board meetings.