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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

IN THE COMPANIES TRIBUNAL OF THE REPUBLIC OF SOUTH AFRICA

“The Tribunal”

Case Number: CT00506/ADJ/2020

 

In the ex parte matter of:

 

Blyde River Botanical Reserve Homeowners Association NPC (REGISTRATION NO.[…])

DECISION

 

1. INTRODUCTION:

1.1  The Applicant is the Blyde River Botanical Reserve Homeowners Association NPC, with its address at Plot 91 Blyde River Botanical Reserve, Swadini Road R531, Hoedspruit, 1380[1].

1.2  The application is brought by the Applicant’s Charman , Mr Paul Jones,ID No.[…]. The resolution of directors authorising Mr Jones to act on behalf of the Association has not been furnished.

1.3  The Applicant has filed an application[2] requesting an extension of the time period within which to hold the 2020 AGM to 28 November 2020. The Applicant’s Memorandum of Incorporation provides: "the company shall hold an annual general meeting not later than 9 (nine) months after the end each financial year, and shall designate the meeting as such in the notice convening the meeting".

1.4  The Applicant has submitted the following:

(i) that the Annual Financials for the year end 2019 were only received in Jne 2020 from the Auditors;

there is a new Board of Directors who took office in January 2020 after the resignation of 3 directors effective December 2019, leaving the Association with only 1 (one) director;

(ii)  that the Association would like to dispose of all statutory items being the AFS 2019, budget approval for the budget 2019, and approval of the Auditors;

(iii) the Association is out of the prescribed time limit of 9 and 15 months to convene an AGM; and

(iv) that the board would like to convene an electronic AGM by means of voting electronically, on 28 November 2020 at 10.08.

2. APPLICABLE LAW

2.1  While the applicant has not indicated which section of the Companies Act (the Act) it relies upon for this application, this application is for the extension of the period within which to hold its 2020 AGM to 28 November 2020.

2.2  Section 61 of the Act provides for shareholder meetings. Section 61(7) specifically, provides as follows:

“A public company must convene an annual general

meeting of its shareholders-

(a) initially, no more than 18 months after the company’s date

of incorporation; and

(b) thereafter, once every calendar year, but no more than 15 months after the date of the previous annual general meeting, or within an extended time allowed by the Companies Tribunal, on good cause shown.”

2.3  Section 61(8) provides for the key business issues to be considered at the AGM, it provides:

(8) A meeting convened in terms of subsection (7) must, at a minimum, provide for the following business to be transacted;

(a) Presentation of –

(i)  the directors’ report;

(ii)  audited financial statements for the immediately preceding financial year; and

(iii)  an audit committee report;

(b ) election of directors, to the extent required by this Act or

the company’s Memorandum of Incorporation;

(c) An appointment of-

(i)  An auditor for the ensuing financial year; and

(ii) An audit committee; and

(iii) Any matters raised by shareholders, with or without advance notice to the company.

3. FINDINGS

Section 1 of the Companies Act defines a public company as a profit company that is not a state owned company , a private company or a personal liability company. The application of section 61 (7) excludes non-profit companies and therefore the applicant is not subject to section 61(7) as it is a non-profit company.

 

ORDER

The application is dismissed.

 

B. Zulu

MEMBER: COMPANIES TRIBUNAL

23 November 2020

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