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Companies Act, 2008 (Act No. 71 of 2008)

Chapter 2 : Formation, Administration and Dissolution of Companies

Part F : Governance of companies

65. Shareholder resolutions

 

 

1) Every resolution of shareholders is either an ordinary resolution or a special resolution.

 

2) The board may propose any resolution to be considered by shareholders, and may determine whether that resolution will be considered at a meeting, or by vote or written consent in terms of section 60.

 

3) Any two shareholders of a company—
a) may propose a resolution concerning any matter in respect of which they are each entitled to exercise voting rights; and
b) when proposing a resolution, may require that the resolution be submitted to shareholders for consideration
i) at a meeting demanded in terms of section 61(3);
ii) at the next shareholders meeting; or
iii) by written vote in terms of section 60.

 

4) A proposed resolution is not subject to the requirements of section 6(4), but must be—
a) expressed with sufficient clarity and specificity; and
b) accompanied by sufficient information or explanatory material

to enable a shareholder who is entitled to vote on the resolution to determine whether to participate in the meeting and to seek to influence the outcome of the vote on the resolution.

 

5) At any time before the start of the meeting at which a resolution will be considered, a shareholder or director who believes that the form of the resolution does not satisfy the requirements of subsection (4) may seek leave to apply to a court for an order—
a) restraining the company from putting the proposed resolution to a vote until the requirements of subsection (4) are satisfied; and
b) requiring the company, or the shareholders who proposed the resolution, as the case may be, to—
i) take appropriate steps to alter the resolution so that it satisfies the requirements of subsection (4); and
ii) compensate the applicant for costs of the proceedings, if successful.

 

6) Once a resolution has been approved, it may not be challenged or impugned by any person in any forum on the grounds that it did not satisfy subsection (4).

 

7) For an ordinary resolution to be approved by shareholders, it must be supported by more than 50% of the voting rights exercised on the resolution.

 

8) Except for an ordinary resolution for the removal of a director under section 71, a company’s Memorandum of Incorporation may require—
a) a higher percentage of voting rights to approve an ordinary resolution; or
b) one or more higher percentages of voting rights to approve ordinary resolutions concerning one or more particular matters, respectively,

provided that there must at all times be a margin of at least 10 percentage points between the highest established requirement for approval of an ordinary resolution on any matter, and the lowest established requirement for approval of a special resolution on any matter.

 

9) For a special resolution to be approved by shareholders, it must be supported by at least 75% of the voting rights exercised on the resolution.

 

10) A company’s Memorandum of Incorporation may permit—
a) a different percentage of voting rights to approve any special resolution; or
b) one or more different percentages of voting rights to approve special resolutions concerning one or more particular matters, respectively,

provided that there must at all times be a margin of at least 10 percentage points between the highest established requirement for approval of an ordinary resolution on any matter, and the lowest established requirement for approval of a special resolution on any matter.

 

11) A special resolution is required to—
a) amend the company’s Memorandum of Incorporation to the extent required by section 16(1)(c) and section 36(2)(a);
b) ratify a considered revision of a company’s Memorandum of Incorporation, as contemplated in section 18(1)(b);
c) ratify actions by the company or directors in excess of their authority, as contemplated in section 20(2);
d) approve an issue of shares or grant of rights in the circumstances contemplated in section 41(1);
e) approve an issue of shares or securities as contemplated in section 41(3);
f) authorise the board to grant financial assistance in the circumstances contemplated in section 44(3)(a)(ii) or 45(3)(a)(ii);
g) approve a decision of the board for re-acquisition of shares in the circumstances contemplated in section 48(8);
h) authorise the basis for compensation to directors of a profit company, as required by section 66(9);
i) approve the voluntary winding up of the company, as contemplated in section 80(1);
j) approve the winding up of a company in the circumstances contemplated in section 81(1);
k) approve an application to transfer the registration of the company to a foreign jurisdiction as contemplated in section 82(5);
l) approve any proposed fundamental transaction, to the extent required by Part A of Chapter 5; or
m) revoke a resolution contemplated in section 164(9)(c)

 

12) A company’s Memorandum of Incorporation may require a special resolution to approve any other matter not contemplated in subsection (11).