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Free Download - Application for passport or travel document

Application for passport or travel document

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Free Download - Agreements between co-sureties

Agreement between co-sureties

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Free Download - Application to change name of banking institution in register

Application to the Registrar of Banks to change the name of a banking institution to the newly registered name as reflected on the Certificate and requesting that such name be reflected on the register.

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Free Download - Proxy for Private Company

Proxy for Private Company

The manner in which meetings of a board of directors of a company must be conducted and the voting procedure relevant to such meetings are regulated in terms of the Companies Act 71 of 2008 (“Companies Act”) and the memorandum of incorporation of the company (“MOI”).

The Companies Act allow shareholders of a company to appoint proxies and delegate certain duties to proxies such as attending shareholder meetings and voting on their behalf at such meetings. A proxy is therefore a representative or agent who is legally authorised to act on behalf of another party.

It is important to note that a proxy must be deposited at the office of the company not less than 48 hours before the time appointed for holding of a meeting and if not deposited timeously, it shall not be treated as valid. It would result in an internal conflict within section 58 of the Act and will be inconsistent with the provisions of the Act and in particular with provisions of section 58(1) of the Act.

An important distinction can be drawn between a proxy and an alternate director. The alternate director does not serve in a representative capacity, but serves as if he/she is appointed as a director of the company.

The alternate director accordingly needs to act in the best interest of the company and is subject to all of the fiduciary duties towards the company as contemplated in the Companies Act.

Although the appointment of alternate directors is regulated by the Companies Act, it is also crucial to ensure that the MOI of the company addresses the nomination, appointment and service of an alternate director.

The dire consequences of the practical utility in respect of the following:

• It is estimated that at least 90%, if not more, of the companies who have drafted a Memorandum of Incorporation (MOI) on behalf of their corporate clients, were wrong and advised their company clients incorrectly.
• It is further estimated that 90%, if not more, literally thousands of registered MOI’s in our country contain void stipulations, which are inconsistent with the Act pertaining to late proxies.
• General meetings or annual general meetings will be disrupted and inconvenienced to the extent that no meeting will commence on the stipulated time scheduled in the notice until all proxies delivered, whether a millisecond or a nanosecond before the time scheduled for that meeting are firstly scrutinised, the validity thereof verified and counted.
• One can only imagine what absolute chaos will ensue in instances when public companies with literally hundreds and possibly thousands of eligible voter members giving proxies, are confronted with proxies delivered a second before the scheduled time for the commencement of the meeting.

The concept of disqualifying ‘late proxies’ stood the test of court scrutiny over time since the Companies Act 46 of 1926, the previous Companies Act 61 of 1973.

Section 58 of the Act stipulates, among other things, the following:
‘58(1) At any time, a shareholder of a company may appoint any individual, including an individual who is not a shareholder of that company, as a proxy to:
(a) participate in, and speak and vote at, a shareholders meeting on behalf of the shareholder; or
(b) give or withhold written consent on behalf of the shareholder to a decision contemplated in section 60.
(2) A proxy appointment:
(a) must be in writing, dated and signed by the shareholder; and
(b) remains valid for –
(i) one year after the date on which it was signed; or
(ii) any longer or shorter period expressly set out in the appointment, unless it is revoked in a manner contemplated in subsection (4)(c), or
(iii)expires earlier as contemplated in subsection (8)(d).

(3) Except to the extent that the Memorandum of Incorporation of a company provides otherwise:
• a copy of the instrument appointing a proxy must be delivered to the company, or to any other person on behalf of the company, before the proxy exercises any rights of the shareholder at a shareholders meeting.

With reference to s 58(3)(c), some people are of the view that section does not refer to or relate in any way as to the time when the proxy is to be so delivered. That is provided in section 58(1) of the Act.

It can clearly be assumed that ‘before the proxy exercises any rights’ refers to and relates to time, ‘before’ can be nothing else than time related.

Furthermore, the introductory wording ‘except to the extent that the Memorandum of Incorporation of a company provides otherwise’ postulates that the contents of s 58(3)(c) is alterable as stipulated in s 15(2) of the Act, which reads as follows:

‘15(2) The Memorandum of Incorporation of any company may:
(a) include any provision:
• altering the effect of any alterable provision of this Act;
• imposing on the company a higher standard, greater restriction, longer period of time or any similarly more onerous requirement, than would otherwise apply to the company in terms of an unalterable provision of this Act’.
An ‘alterable provision’ is defined by section 1 of the Act, as follows:
A provision of this Act in which it is expressly contemplated that its effect on a particular company may be negated, restricted, limited, qualified, extended or otherwise altered in substance or effect by the company’s Memorandum of Incorporation’.

Does ‘except to the extent that the Memorandum of Incorporation of a company provides otherwise’ not mean ‘expressly contemplated’ within the meaning of an alterable provision?

The ‘any time’ referred to in s 58(1) relates to the giving of a proxy inter partes (meaning between the parties) between the member and whomever the member appoints in terms of the proxy. However, as far as the company is concerned for purposes of regulating its own administrative procedures as provided for in s 15(2)(a)(iii) above, it is entitled to change ‘before’ as stipulated in s 58(3)(c) to ‘48 hours before’. Inter partes the proxy giver and the proxy receiver, it can be done any time.



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Free Download - Will of testator married out of community of property; no children; bequeathing estate to wife; provision for her predeceasing him and bequeathing estate to charitable institution

A will stipulating the wishes of a testator/s married out of community of property with no children and wishes to leave their estate to a charitable institution.

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Free Download - Mix: Relevant clauses and notarial contracts

1. Relevant clauses for a notarial or underhand deed of trust constituting a fund from which donations can be made to charity in general 2. Relevant clauses in a notarial deed of trust created for ecclesiastical, charitable and educational purposes 3. Relevant clauses in a notarial deed of trust to establish a school 4. Relevant clauses in an underhand educational deed of trust and others.

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Free Download - Deed of assignment of copyright (employee)

Agreement whereby an employee has assisted in the creation of a certain works and ceding over of the copyrights and waiving any rights in favour of the assignee in any rights to authorship.

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Free Download - Application for rehabilitation in terms of s124-126 of the Insolvency Act

Notice of motion and supporting affidavit for the application of the rehabilitation of an insolvent after having given the necessary notice to the creditors and settling liabilities due to them with no objections.

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Free Download - Proxy for Public Company

Proxy for Public Company

Directors of public companies play a crucial role in ensuring that a company and its management team serve the interests of its shareholders. Proxy voting can help ensure accountability of management teams and boards of directors, align management and shareholder interests, and monitor and assess the degree of transparency and disclosure with respect to executive compensation and board actions affecting shareholders’ rights.

The following general guidelines are intended to reflect these proxy voting principles:

Under the 1973 Companies Act, a company was entitled to require a proxy to be lodged on or before a particular time, in order for that proxy to be valid. The rationale for this provision was to give sufficient time to enable the officer presiding at a meeting to verify and validate the proxy, before allowing that proxy to vote.

It is common practice for a company to include a provision in its memorandum of incorporation which requires that a proxy form be lodged at least 24 hours prior to a meeting.

Reliance on this provision has meant that a shareholder who is unexpectedly prevented from attending a shareholders meeting through forces beyond its control, is unable to submit a proxy form on the day of meeting, resulting in that shareholder not being entitled to vote at such meeting.

The wording of the Companies Act, 2008 (“the Act”) has changed, and the shareholders of a company is entitled at any time to appoint any individual as a proxy to participate in and speak and vote at a shareholders meeting on behalf of that shareholder.

The Practical Implications

Upon a proper interpretation of the judgment, and the relevant provisions of the Act, the provisions of a company’s MOI which purport to impose a time constraint for the delivery of a proxy form, will be invalid, only to the extent that such provision/s are inconsistent with their shareholders’ right to appoint a proxy at any time before a meeting as provided for the in the Act.

The proxy forms themselves will remain valid and shareholders making use of such forms will not be excluded from any meetings.

The court did recognise the practical difficulties that may arise as a result of this interpretation of s 58, including the administrative burden imposed on the presiding officer of a general meeting to validate and verify proxies prior to allowing a proxy to exercise a vote. The court noted that such practical difficulties need to be resolved through legislative intervention and not through a strained interpretation of the Act.

The ultimate effect of this judgment, therefore, is that shareholders may submit a proxy form “at any time” and the company is not entitled to place any time constraint on such right. Any attempt to enforce such a time constraint will not withstand challenge.

No legislative intervention has been forthcoming to date, and any company which has an MOI which requires a proxy form to be delivered at a specified time prior to a meeting, should consider an amendment to that MOI, and at the very least, should not attempt to enforce such time limitation.

Appointing a proxy

A member of a company is entitled to appoint another person as his proxy to exercise all or any of his rights to attend, speak and vote at a meeting of the company.

In every notice calling a meeting of a company, there must appear, with reasonable emphasis, a statement informing the member of his rights under the Companies Act) to appoint a proxy, and any more extensive rights conferred by the articles to appoint more than one proxy.

A member can appoint any other person to act as his proxy; it does not have to be another shareholder of the company. In practice, where the voting at a general meeting is to be held on a poll rather than a show of hands, many shareholders opt to appoint the chairman of the meeting to be their proxy. They usually set out voting instructions within the proxy form, which the chairman is obliged to follow.

A member of a company is entitled to appoint more than one proxy to exercise all or any of his rights to attend and to speak and vote at a meeting of the company, provided that each proxy is appointed to exercise the rights attached to a different share or shares held by the member. This right cannot be excluded or reduced by a company’s articles of association.

The Companies Act does not specify any particular way in which the members of a non-traded company should appoint a proxy. However, the company's articles of association will usually contain more detail on the appointment of a proxy and should be reviewed prior to doing so.

The Companies Act also does not specify any time by which a proxy notice must be received. However, in practice, companies tend to set a deadline for delivery of proxy notices in their articles of association. A member may terminate his proxy's authority to attend, vote and speak at a general meeting at any given point.

Voting By Proxy

In order to pass a shareholder resolution at a general meeting (including an AGM), the members of a company will have to vote on the resolution either on a show of hands, or on a poll.

A proxy must vote in accordance with any voting instructions given by the member by whom the proxy is appointed.

Subject to the provisions of a company's memorandum of incorporation, on a vote on a resolution on a show of hands at a meeting, every proxy present who has been duly appointed by one or more members entitled to vote on the resolution has one vote, and a proxy has one vote for and one vote against the resolution if:

• the proxy has been duly appointed by more than one member entitled to vote on the resolution, and
• the proxy has been instructed by one or more of those members to vote for the resolution and by one or more other of those members to vote against it.

Many companies now generally use poll voting rather than voting on a show of hands. On a poll, all or any of the voting rights of a member may be exercised by one or more duly appointed proxies, but where more than one proxy is appointed, those proxies are not authorised to exercise more extensive voting rights than could have been exercised by the member in person. This reflects the fact that multiple proxies can only be appointed and exercise rights in respect of different shares.



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Free Download - Deed of transfer Recitals (causae): testate succession

Clauses regarding the transfer of property when there was a joint estate and a will stipulating the details of the disposal of the property to a recipient.

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Free Download - By the holder of claims acquired in terms of the prior legislation

By the holder of claims acquired in terms of the prior legislation

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