Notice of Meeting for Public Company

A general meeting must satisfy certain requirements set out in the Companies Act.

These requirements include sending a notice of the meeting (which complies with the statutory content requirements) in the correct form to everyone who is entitled to receive it, and ensuring that sufficient notice of the meeting is given.

In this technology advanced era it may also be beneficial for a company to have electronic meetings. The basic framework in South Africa for conducting shareholders’ meetings electronically is contained in the Companies Act, 71 of 2008 (“the Companies Act”), and sets out that:

1. All shareholders’ meetings of public companies must provide for electronic participation by shareholders.

2. All companies may elect to either:
• conduct a shareholders’ meeting entirely by electronic communication; or
• provide for some shareholders to participate electronically in a shareholders meeting that is being held in person, unless doing so is prohibited by their memorandum of incorporation (“MOI”).

Therefore, the starting point is to check the company’s MOI to determine if it indeed contains a prohibition on electronic shareholders’ meetings.

Although this prohibition is not something commonly seen, look for an article in the MOI that references section 63(2) of the Companies Act and consider whether the MOI alters the position under the Companies Act that allows for electronic shareholder meetings.

In the absence of any specific change by the MOI to these provisions of the Companies Act, the company will be allowed to conduct shareholders’ meetings electronically, in whole or in part.

Who is entitled to receive notice of general meeting?

Notice of general meeting should be sent to all persons entitled to receive it. Failure to give notice to those entitled to receive it may invalidate the meeting.

Accordingly, identifying the persons entitled to receive notice is an important undertaking. The task will invariably be easier where the company is a small private company with only one class of shares, compared to where the company is a large listed public company with several classes of shares and a global shareholder base.

Persons entitled to receive notice

The members, directors and auditors of a company are entitled to receive notice of general meeting. A company's MOI may include provisions relating to entitlement to notice, so these should be checked before any notice is sent out.

This Notice sets out the procedures which shareholders should follow in order to participate in the Annual General Meeting by electronic communication.

The electronic communication to be employed will enable all persons participating in the meeting to communicate concurrently with each other without an intermediary and to participate reasonably effectively in the meeting.

Key legal requirements for an electronic meeting

Once it has been established that a company is permitted to hold the shareholders’ meeting electronically, it is important to consider the key legal requirements:

1. Shareholders must be able to participate reasonably effectively in the meeting.

2. All participants in the meeting must be able to communicate concurrently with each other without the need for an intermediary.

3. The costs of a shareholder in participating in the electronic meeting are for the expense of the shareholder, unless the company determines otherwise.

4. The notice of the shareholders’ meeting must include all information necessary for shareholders to participate electrically.

Electronic Participation Process

Shareholders who wish to vote, but not attend the Annual General Meeting by electronic participation:

• Register online at www.smartagm.co.za. Shareholders may still register online to participate in and/ or vote electronically at the Annual General Meeting after this date and time, provided, however, that for those shareholders to participate and/or vote electronically at the Annual General Meeting, they must be verified and registered before the commencement of the Annual General Meeting.

• As part of the registration process you will be requested to upload proof of identification (that is certified copy of South African identity document, South African driver’s licence or passport) and authority to do so (where acting in a representative capacity), as well as to provide details, such as your name, surname, email address and contact number.

• Following successful registration, the Transfer Secretaries will provide you with a meeting ID number, username and password in order to connect electronically to the Annual General Meeting.

Shareholders who wish to vote, but not attend the Annual General Meeting by electronic participation:

• Complete the form of proxy attached to this Notice of the Annual General Meeting and email same, together with proof of identification (i.e. certified copy of South African (SA) identity document, SA driver’s licence or passport) and authority to do so (where acting in a representative capacity), to the Transfer Secretaries, Computershare Investor Services Proprietary Limited (Transfer Secretaries).

The Meeting:

1. Each shareholder is entitled to appoint one or more proxy(ies) (who need not be a shareholder(s) of the Company) to participate, speak and vote in their stead at the Annual General Meeting.

2. Voting will take place by way of a poll and accordingly every holder of ordinary shares will have one vote in respect of each ordinary share held and every holder of B ordinary shares will have 10 votes in respect of each B ordinary share held.

3. The cost (e.g. for mobile data consumption or internet connectivity) of electronic participation in the Annual General Meeting will be carried by the participant.

4. The participant acknowledges that the electronic communication services are provided by third parties and indemnifies the Company and its directors/employees/Company Secretary/ Transfer Secretaries/service providers against any loss, injury, damage, penalty or claim arising in any way from the use or possession of the electronic services, whether or not the problem is caused by any act or omission on the part of the participant or anyone else.

In particular, but not exclusively, the participant acknowledges that he/she will have no claim against the Company or its directors/employees/Company Secretary/Transfer Secretaries/ service providers, whether for consequential damages or otherwise, arising from the use of the electronic services or any defect in it or from total or partial failure of the electronic services and connections linking the participant via the electronic services to the Annual General Meeting.