Proxy Representation – The Supreme Court of Appeal’s interpretation of Section 58(1) and 58(3)(C) of the Companies Act, 71 of 2008

As most practitioners are aware, especially those who deal with the drafting of Shareholders Agreements or even Memoranda of Incorporation, we usually insert quite a lengthy clause dealing specifically with proxies, their appointment, their right to vote, etc.

I don’t believe many practitioners (be it attorneys, auditors, or advisors) have ever given much thought to the drafting of this clause, as most will merely draw a template at hand and amend only the provisions they deem necessary. Even though the aforesaid is not at all recommended, as no agreement will ever be exactly the same if you take factors of each company into account on a case by case basis, the reality is that practitioners in future have to be even more attentive to the provisions regarding proxies.

My comments as aforementioned are based on the judgment recently handed down by the Supreme Court of Appeal (“SCA”) in Richard Du Plessis Barry v Clearwater Estates NPC & others (187/2016) [2017] ZASCA 11 (16 March 2017) (“Richard Du Plessis Barry v Clearwater Estates.

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