Know, grow, protect and enjoy South Africa's indigenous plants

BotSoc feedback from the 

SPECIAL GENERAL MEETING

Dear BotSoc member,

If you joined our BotSoc Special General Meeting on Saturday, our sincere thanks to you! And if you missed it, please find important information from the meeting below.

Resolutions 1-3 had a very positive response. They are enabling BotSoc to take its revised membership categories forward in the new financial year starting on 1 April 2023 and our conservation focus areas and fundraising programme forward immediately.

This is a transitional period and we hope that we can count on your support and patience as we are bound to experience some teething problems despite all our efforts to streamline the system.  Thank you for your ongoing interest and contributions.

 

SGM Feedback on

Resolutions 4 & 5

At our Special General Meeting (SGM) held on 11 March 2023, all resolutions were approved of which two required feedback to members on 15 & 31 March 2023.

Since the SGM, and while feedback has been provided, BotSoc and SANBI executives prioritised attending to these resolutions, in order to support our collaborative relationship into the future. BotSoc has sought legal opinion from Fairbridges Attorneys in order to inform action following the adoption of resolutions 4 and 5 at the SGM.

Please find feedback below.

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.

SANBI Garden Access

Fairbridges Attorneys have provided a legal opinion on the withdrawal of the (ordinary) annual BotSoc members’ garden access benefit. The provisions of the 2019 agreement gives SANBI the right to withdraw free access benefit to ordinary BotSoc members. 

Please note that this does not apply to the Life Members’ continued garden access which SANBI has committed to honour upon receipt of the verified Life Member data.  The due date for all Life Member data verification and authorisation to share this data with SANBI to enable continued Life Member garden access, is 31 March 2023.

SANBI has committed to providing a response on the continuation of the Life Member guest garden entry benefit beyond 31 March 2024, in May 2023 to enable feedback at the BotSoc AGM on 1 July 2023.

We look forward to seeing you there.

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

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