Resolution 4

BotSoc has engaged SANBI on making the Collaboration Agreement available to all members.

They are not in agreement to put it out into the public domain by distributing it.

Substantiating factors:

SANBI has a number of other organisations with which it has agreements and these are also subject to confidentiality clauses. SANBI needs to maintain consistency and does not want to set a precedent.

The Collaboration Agreement clearly defines terms on confidentiality and it does not make provision for distribution without the consent of both parties.

This negotiation has already been covered extensively by the media which has had a significant impact on staff and resources required to attend to this. This is largely due to members not understanding the difference between the two organisations and various other matters. 

Both organisations have taken legal advice and BotSoc’s feedback to our members is as follows:

Various legislation is relevant to this matter and has been examined: The Non-Profit Organisation Act (Act No. 71 of 1997) (“the NPO Act”) and the Promotion of Access to Information Act (“PAIA”) (Act No. 2 of 2000), and the Constitution of BotSoc.

For special noting, under the PAIA, and in terms of section 65, “the head of a private body must refuse a request for access to a record of the body if its disclosure would constitute an action for breach of a duty of confidence owed to a third party in terms of an agreement.”

The SANBI BotSoc Collaboration Agreement includes a confidentiality clause as discussed at the SGM and BotSoc has therefore been advised that no resolution that would have the effect of placing BotSoc in breach of its contractual obligations can be of any force or effect.  Thus, there is no obligation on the Council to furnish a copy of the document to members. However, the content was discussed at the SGM to provide members with context of the overall collaborative arrangement and ensure transparency.

 Fairbridges Attorneys has further advised that both the current member benefits (including those relating to access to SANBI National Botanical Gardens, as well as the new benefits which will come into play on 1 April 2023) should be clearly communicated to members to enable members to make an informed decision as to whether they wish to continue to subscribe.  Please refer to our membership benefits here. 

Resolution 5

Resolution 5 evoked much discussion at the SGM. We’ve provided feedback to SANBI, and it has raised some questions with them. SANBI has provided feedback to us, stating that they see the national Council and the General Manager as the mandated representatives of BotSoc and the elected structure to negotiate and finalise an already drawn-out process.

Council and the BotSoc team are currently ensuring that SANBI is aware that we are taking the negotiated terms back to members at the AGM in July 2023, as part of our effort to maintain transparency. The vote will action the next step to finalise the Collaboration Agreement. We have also highlighted that our members emphatically expressed support of how BotSoc has been represented throughout the process at the SGM on 11 March 2023.

BotSoc sought legal advice on the implications of Resolution 5 approved at the SGM as this has bearing on other similar BotSoc processes and decisions. The revision of the BotSoc Constitution and the establishment of a Council Charter will be steered by this over the next few months as well. We hope to have further feedback for members on this at the AGM on 1 July 2023. Those who attended the SGM would recall that this resolution was contested by some members when the resolution was discussed after the vote was already taken, and due to many members having left the meeting, withdrawal could not be discussed.

Both organisations have taken legal advice and BotSoc’s feedback to our members on this matter is as follows:

Please refer to the BotSoc National Constitution.

Clause 21.2 elaborates on the specific powers of the Council, namely:-

“21.2: the council shall have the following specific powers-

21.2.1: exercise the powers of the society for achieving the society’s objects only

21.2.3: to execute any contracts in the name of the society

21.2.7: to make, vary and repeal rules for the regulation of the affairs of the society, its officers and employees any sub-committee or the members, provided that such rules are not inconsistent with or contrary to the provisions of this constitution.”

In addition, Clause 21.3 provides a counterbalance in that it allows members at a general meeting (this clearly includes a special general meeting) to review, approve or amend any decision provided that such decision shall not invalidate any action taken by the Council.

Resolution 5, is therefore binding on Council and places a limitation on Council and precludes this body “to enter into any further binding agreements with SANBI, including the proposed revision of the Collaboration Agreement unless and until this is approved by vote at the Annual General Meeting to be held on 1 July 2023”.

However, Resolution 5 cannot alter this agreement based on the wording of clause 21.3. What the resolution does prevent is that the written agreement recording this cannot be signed. 

The resolution hence does not impact on what has been agreed through the year-long negotiation process,  but does prevent it being signed by BotSoc. If members vote against it being signed with the current SANBI garden access benefits associated to BotSoc subscription, SANBI would be within their right to enter a 365 day notice period for cancellation.

Once again, our sincere thanks for the open and positive discussion on Saturday 11 March 2023.