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12. Special resolution 6 – amendment of article 41 – use of electronic media
RESOLVED THAT the entire article 41 of the company’s MOI be and is hereby replaced by the following
article 41:
“41. USE OF ELECTRONIC MEDIA AND ELECTRONIC COMMUNICATION
41.1 Whenever the memorandum of incorporation of the company or the applicable legislation
requires:
41.1.1 information to be in writing, that requirement is met by a data message if the
information contained therein is accessible in a manner usable for subsequent
reference or, as otherwise stipulated by the applicable legislation (including, but
not limited to, the Electronic Communications and Transactions Act 25 of 2002,
as amended or substituted from time to time) (the Electronic Communications and
Transactions Act);
41.1.2 information to be presented or retained in its original form, that requirement is met
by a data message if it complies with the applicable provisions of the Electronic
Communications and Transactions Act, from time to time;
41.1.3 a signature of a shareholder or other person or a document to be signed by or on
behalf of the company, that requirement shall be met in relation to a data message if
there is compliance with the applicable provisions of the Electronic Communications
and Transactions Act, from time to time;
41.1.4 that certain documents, records or information be retained, that requirement is met
by retaining data messages in compliance with the applicable provisions of the
Electronic Communications and Transactions Act, from time to time.
41.2 The shareholders, directors and the company agree that in any legal proceedings, nothing in
the application of the rules of evidence shall apply so as to deny the admissibility of a data
message in evidence:
41.2.1 on the sole grounds that it is a data message; or
41.2.2 if it is the best evidence that the person adducing it could reasonably be expected
to obtain, on the grounds that it is not in its original form.
41.3 Information in the form of a data message shall be given due evidential weight. In assessing
the evidential weight of a data message, regard shall be had to the reliability of the manner
in which the data message was generated, stored or communicated, to the reliability of the
manner in which the integrity of the information was maintained, to the manner in which its
originator was identifi ed, and to any other relevant factor.
41.4 Nothing in this memorandum of incorporation shall be interpreted as prohibiting the company
from establishing an electronic proxy system. Insofar as the memorandum of incorporation
or the applicable legislation requires proxies to be submitted or otherwise fi led with the
company, such requirement shall be met if, in the sole opinion of the board of directors of the
company, the electronic proxy system established is capable of satisfying the requirements
of this article 41”.
Percentage of voting rights required to pass this resolution: 75% of the voting rights exercised.
Motivation for special resolutions 5 and 6
Prior to the enactment of the 2008 Companies Act, the JSE set specifi c requirements regarding the
communication by listed companies with their shareholders through the means of electronic delivery
and prescribed that certain requirements relating to electronic delivery must be included in the listed
company’s memorandum of incorporation. The JSE Listings Requirements no longer stipulates
the requirements for electronic communications as these are dealt with adequately in the 2008
Companies Act.
Integrated report 2011 | African Bank Investments Limited 99