About Us - Memorandum of Incorporation
The Articles of Table A in Schedule 1 to the Companies Act, 1973, as amended, shall not apply to the Company.
The articles of the Company are as follows: -
In these Articles, unless the context otherwise indicates, -
- A C A shall mean the Association of Communication and Advertising or its Successor in title.
- The Act shall mean the Companies Act No. 61 of 1973, as amended from time to time;
- A M F shall mean the Advertising Media Forum or its Successor in title.
- Bipartite Grouping shall mean the grouping of Buyers (advertisers represented by M F S A and advertising agencies represented by A C A and/or A M F) and the sellers represented by P M S A.
- The Board shall mean the Board of Directors of the Company established by Article 1.5 as constituted from time to time;
- The Company shall mean Audit Bureau of Circulations of South Africa (association incorporated under section 21), registration No. 1947/026033/08, and may be referred to as A B C;
- The Constituent Bodies shall be A C A and A M F (acting together for advertising agencies), M F S A, and P M S A.
- Director means a director of the Company.
- Guarantors shall be those natural persons, appointed by the Constituent Bodies as subscribers to the memorandum, to represent the Constituent Bodies in the following ratios:
- A C A and/or A M F — 2 (two) Guarantors.
- M F S A — 2 (two) Guarantors.
- P M S A — 4 (four) Guarantors.
- M F S A shall mean the Marketing Federation of South Africa or its Successor in title.
- Memorandum shall mean the Memorandum of the Company.
- P M S A shall mean Print Media South Africa or its Successor in title.
- Rules mean the written body of rules of the Company, as amended from time to time.
- Successor in title shall mean the body approved by the Board as succeeding the relevant body.
- Words importing the masculine gender include female.
- When a provision of the Act is referred to, the reference is to such a provision, as amended by statute.
- Words in the singular include the plural and words in the plural include the singular.
- A reference to any statutory enactment shall be construed as a reference to that enactment as at the date of adoption of these Articles and as amended or substituted from time to time.
Register of Guarantors
The Company shall retain at its registered office a Register of Guarantors of the Company as provided in Section 105, read with section 110 of the Act. The Register of Guarantors shall be open to inspection as provided in Section 113 of the Act.
A meeting of the Company shall be either the Annual General Meeting or a Special General Meeting, referred to below as a General Meeting.
The Annual General Meeting shall be held within not more than nine months after the end of every ensuing financial year of the Company; and within not more that 15 months after the date of the last meeting preceding such meeting of the Company.
A Special General Meeting may be held at any time at the registered office of the Company or another venue acceptable to all Guarantors and may be called by Guarantors representing not less than 25% (twenty five percent) in number of the Guarantors.
Notice of General Meetings
An Annual General Meeting, and a General Meeting called by passing a Special Resolution, shall be called by not less than 21 (twenty-one) clear days' notice in writing. Subject to the requirements of the Act any other General Meeting shall be called by 14 (fourteen) clear days' notice in writing. The notice shall be exclusive of the day on which it is served or deemed to be served and on the day for which it is given, and shall specify the place the day and the hour of the meeting and, shall be given in the manner hereinafter mentioned or in such other manner, if any, as may be prescribed by the Company in General Meeting, to all such persons as are, under these Articles entitled to receive such notices from the Company; provided that a meeting of the Company shall notwithstanding the fact that it is called by shorter notice than that specified in these Articles, be deemed to have been duly called if it is to be agreed by a majority of the Guarantors having a right to attend and vote at the meeting, being a majority holding not less than 75% (seventy-five percent) of the total voting rights of all Guarantors.
Proceedings at General Meeting
The Chairman of the Board shall preside at every General Meeting. In the absence of the Chairman, his powers and duties shall devolve upon the Vice-Chairman. In the event of both the Chairman and Vice-Chairman being absent from the General Meeting, the Guarantors present shall elect a presiding officer from among their number.
The Annual General Meeting shall deal with and dispose of all matters prescribed by the Act, including:
- The receiving and consideration of the Annual Financial Statements;
- The consideration and approval of the budget for the ensuing year;
- The consideration and approval of the report of the Board;
- The appointment and level of remuneration of an auditor;
- The ratification of the appointment of the Directors;
- The consideration of any other matter of which due notice has been given.
A Guarantor who intends to bring a motion before a General Meeting shall, not less that 14 (fourteen) days before the day appointed for the said General Meeting, serve upon the Company at its registered office a notice, in writing, signed by himself and one other Guarantor containing the proposed resolution. Upon receipt of such notice, the secretary shall, in any case where the notice is received before the notice of the General Meeting is issued include it in the notice of the General Meeting, and shall in any other case issue as quickly as possible to the Guarantors notice that such resolution will be proposed.
If within 30 (thirty) minutes after the time appointed for the meeting a quorum is not present it shall stand adjourned to a day not earlier than 7 (seven) days and not later than 21 (twenty one) days after the date of the meeting and if at such adjourned meeting a quorum is not present within 30 (thirty) minutes after the time appointed for the meeting the Guarantors present in person shall constitute a quorum.
The Chairman may, with the consent of any General Meeting at which a quorum is present (and shall, if so directed by the meeting) adjourn the meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place. When a meeting is adjourned, the provisions of section 192(2) of the Act shall apply mutatis mutandis to such adjournment.
Save as herein otherwise provided, at least 6 (six) Guarantors present in person shall be a quorum, provided that a quorum shall never be less than at least 6 (six) persons present in person.
Voting at General Meetings
Voting is restricted to Guarantors. Each Guarantor is entitled to one vote, which may be exercised personally or by proxy. The instrument of proxy shall be in writing under the hand of the person granting such proxy.
The instrument appointing the proxy shall be deposited at the office of the Company not less than 24 (twenty-four) hours before the person named purports to vote in respect thereof. No person shall act as a proxy unless he is entitled to be present and vote.
The instrument appointing a proxy and the power of attorney or other authority (if any) under which it is signed or a notarially certified copy of such power or other authority, shall be deposited at the office not less then 24 (twenty four) hours before the person named in such instrument purports to vote in respect thereof, but no instrument appointing a proxy shall be valid after the expiration of 12 (twelve) months from the date of its execution, unless the proxy otherwise provides.
A vote in accordance with the terms of an instrument of proxy shall be valid notwithstanding the previous death of the principal, or revocation of the power provided no intimation in writing of the death or revocation shall have been received at the office or by the Chairman of the meeting before the vote is given.
The provisions of articles 18.104.22.168 shall mutatis mutandis apply to any deadlock arising at any meeting of the Guarantors.
A resolution in writing signed by all the Guarantors of the Company or their duly appointed agents shall (except in cases where a meeting is prescribed by the Act) be as valid and effectual as if it had been passed at a meeting of the Company duly convened and held: provided that such resolution is duly inserted in the minute book of meetings of the Company.
A resolution put to the vote of the meeting shall be decided by a 75% (seventy-five percent) majority of the Guarantors present.
Management of the Company
The business of the Company shall be managed by the Board, who shall exercise such powers, subject to the provisions of the Act, the Memorandum of Association and the Articles of Association.
PMSA will be responsible for managerial services and administration of the Company, unless otherwise decided by the Guarantors.
Board of Directors
The Board shall consist of 8 (eight) Directors.
Election of Directors
The Board shall be comprised as follows.
The Guarantors appointed by A C A and A M F shall collectively be entitled to nominate and appoint a total of 2 (two) Directors to the board.
The Guarantors appointed by M F S A shall collectively be entitled to nominate and appoint 2 (two) Directors to the board
The Guarantors appointed by P M S A shall collectively be entitled to nominate and appoint 4 (four) Directors to the board
On resignation, removal or disqualification of a Director the relevant Guarantor shall appoint a person in his place.
Each set of Guarantors which has the power to appoint a Director as set out above:
- Shall also have the power to remove or replace any such Director and
- Hereby indemnifies the Company and holds it harmless against any claim instituted by any such Director as a result of his removal from office, as well as the costs arising from such claim.
Directors shall retire annually. Retiring Directors shall be eligible for re-appointment.
Each set of Guarantors which has the power to appoint a Director as set out above, shall also have the right to appoint a person to act as alternate director to their chosen Director(s).
An alternate Director shall act subject to the terms, qualifications and conditions applicable to a Director, save that he may not vote at any meeting where the Director to whom he is an alternate, is present.
Remuneration of Directors
The Directors shall not be entitled to remuneration for their services. If any director shall be required to perform extra services outside the scope of such Director’s ordinary duties he shall be entitled to receive a remuneration to be fixed by the Board. The provisions of this article shall not affect the right of any Director to receive a salary in the course of his employment by the Company.
Removal and Disqualification of Directors
The office of a Director shall ipso facto be vacated if: -
- He becomes insolvent, is sequestrated, assigns his estate, suspends payment or compounds with his creditors; or
- He becomes of unsound mind; or
- By notice in writing to the Company he resigns his office; or
- He ceases to be a Director under any provisions of these Articles of Association; or
- He is removed from office by an ordinary resolution of the Company passed in terms of section 220 of the Act; or
- He ceases to be a Director by virtue of any provision of the Act or becomes prohibited from being a Director by reason of any order made under section 219 of the Act; or
- His authority to represent a Guarantor is withdrawn; or
- Without leave of absence and without a valid excuse, he is absent from two consecutive meetings of the Board; or
- He is directly or indirectly interested in any contract or proposed contract with the Company and fails to declare his interest and the nature thereof in the manner required by the Act.
The Company may by ordinary resolution remove any Director before the expiration of his period of office.
- The Board may meet, adjourn and otherwise regulate its meetings, as it shall think fit, provided that it shall meet at least twice a year.
- Any Director can convene a meeting of the Board at any reasonable time upon request, and such meeting shall be held within 14 (fourteen) days of the date of request. Notice of a meeting of the Board shall be given orally, or in writing, to all Directors a reasonable period of time before such a meeting.
- The quorum for a meeting of the board shall be 4 (four) Directors present. Where voting is required a quorum shall be 4 (four) Directors, provided that at least 1 (one) Director shall have been appointed by A C A and/or A M F, 1 (one) Director by M F S A and 2 (two) Directors by P M S A are present. The Board shall transact no business unless a quorum of Directors is present at the time when the meeting proceeds to business.
Each Director present at a meeting of the Board shall be entitled to vote and shall have one vote. A resolution put to the vote of the meeting shall be decided by a simple majority of Directors present.
The Board may appoint committees from among the members and may fix a quorum thereof, and delegate any of its powers to any such committees, and make any rules for regulating the proceedings of the committees. The Chairman or his nominee from time to time shall be ex officio a Member of all committees. Subject to the approval of the Board, each such committee shall have the right to co-opt such person as it may think fit to be a Member of such committee. The Board may appoint executive officers of the Company, including the treasurer and the secretary of the Board.
Subject to the provisions of Section 234 to 241 inclusive of the Act, a Director shall not vote in respect of any contract or proposed contract with the Company in which he is interested, or any matter arising therefrom.
- At the meeting of the board following the Annual General Meeting, the directors shall elect from their numbers, a President and a Vice President.
- The President and Vice President, elected in terms of clause 22.214.171.124, and two other Directors, elected from the remaining sectors of the Bipartite Grouping, shall form the Executive Committee, which will meet on an ad hoc basis. The Executive Committee will make recommendations to the Board, and deal with day-to-day matters, together with the General Manager, not requiring Board approval.
- The Guarantor, whose representative Director vacated office, must fill the vacancy that occurs.
- The full Board shall have the power to change the Rules. The following shall apply to proposed changes to the Rules:
- Must be unanimously approved at a Board meeting.
- Must, together with motivation for the change(s), be circulated 10 (ten) working days prior to the Board meeting.
- Any Rule changes will be implemented as soon as practically possible.
- Any changes to the Rules must be ratified by the Guarantors at an Annual General Meeting or a Special General Meeting, convened as soon as possible in terms of article 1.3.
- The President shall preside as Chairman of the Board. In the absence of the President his powers and duties shall devolve upon the Vice President. In the event of both the President and the Vice President being absent from a Board meeting, the Directors present shall elect a Chairman from among their number.
- In the event of any deadlock arising between the Board members the said deadlock will, if demanded by any Director on written notice to the other Directors, as from that date be deemed to be a matter that is reserved to the Guarantors and shall be referred to the Guarantors for determination. Should the Guarantors fail to resolve the matter (in terms of a resolution passed by the Guarantors) at the first meeting of the Guarantor's held after the said referral of the matter to them (which meeting must be held within 14 (fourteen) days of such referral), any Guarantor shall be entitled to submit the matter for resolution to a referee in accordance with the provisions set out below.
The hearing in respect of the matter referred to in this article will be held at Johannesburg;
Informally with a view to its being completed within 21 (twenty-one) days, having particular regard to any urgency regarding the matter in issue.
The referee will be, if the question in issue is -
- Primarily an accounting matter, a practising, , independent chartered accountant with not less than 10 (ten) years standing as such;
- Primarily a legal matter, a practising advocate or attorney with not less than 10 (ten) years standing as such and
- Any other matter, an independent, suitably qualified person,
And failing agreement between the Parties as to such accountant, advocate, attorney or independent person within 48 (forty-eight) hours after a matter has been submitted by any Guarantor for resolution as set out above, , such person to be appointed by the President for the time being of the South African Institute of Chartered Accountants (where a chartered accountant is to be appointed) or the President for the time being of the Johannesburg Bar Association (where an advocate, attorney or other person is to be appointed) after a matter has been submitted by any Guarantor for resolution as set out above
The referee -
- Will have regard to the desire of the Guarantors to dispose of such matter expeditiously, economically and confidentially; and
- Will make his decision on the basis that it shall not be necessary to observe or carry out the usual formalities or procedures, pleadings and discovery or the strict rules of evidence, which decision will be made as an expert and not as an arbitrator according to what he considers just and equitable in the circumstances.
The decision of the referee in any proceedings
- Will be final and binding on all of the Guarantors and will be entered in the minute books of the Company as a resolution of the Guarantors and;
- Will forthwith be carried into effect.
Other Industry Bodies
The Board may appoint a Director, or any other interested person, to represent the Company on any other industry body.
Appeal of Certain Board Decisions
Any member aggrieved by a decision of the Board may appeal such decision to the Guarantors, provided that such decision-
- Relates to the interpretation of the Rules; or
- Relates to any sanction imposed by the Board; and
- Does not relate to proceedings conducted under clause 12.7 of the Rules and provided further that should such member also be a Guarantor, it shall recuse itself from any deliberations of the Guarantors relating to such appeal.
In the event of a Member referring a decision of the Board to the Guarantors as provided for in 126.96.36.199 above, a resolution of the Guarantors in regard to the decision under appeal shall be final and binding, provided that the provisions of clause 188.8.131.52 will apply, mutatis mutandis, in the event of the Guarantors failing to resolve the matter in terms of a resolution. For avoidance of doubt, a Member shall not have an automatic right of further appeal to a referee as contemplated in clause 184.108.40.206
All acts done by the Board, or any person acting as a Director shall, notwithstanding that it afterwards be discovered that there was some defect in the appointment of any such Directors of persons acting as aforesaid, or that they or any of them are disqualified, be as valid as if every such person had been duly appointed and was qualified to be a Director.
Subject to the provisions of the Act, the Directors, auditors, and other officers for the time being of the Company, shall be indemnified and held harmless out of the assets of the Company from and against all actions, costs, charges, losses, damages and expenses which they, or any of them, their or any of their executors or administrators shall, or may incur or sustain by or by reason of any act done, concurred in or admitted in or about the execution of their duty, in their respective offices, except such (if any) as they shall incur or sustain by or through their own negligence, default, breach of duty or breach of trust respectively, and subject to as aforesaid, none of them shall be answerable for the negligence, default, breach of duty or breach of trust of the other or others of them, or for joining in any receipt for the sake of conformity, or for any bankers or other persons which whom any monies or effects belonging to the Company shall or may be lodged or deposited for safe custody or for insufficiency or deficiency of any security upon which any monies of or belonging to the Company shall be placed out or invested, or for any loss, misfortune or damage which may happen in execution of their respective offices or in reaction thereto, unless the same shall happen by or through their own negligence, default, breach of duty or breach of trust respectively.
Notices and Domicilia
- Each Guarantor shall register with the Company an address within South Africa to serve as that Guarantor’s registered address and domicilium citandi et executandi for the purposes of receiving all notices, minutes, demands, legal process and other documents provided for, or required to be given by the Company in terms of or arising out of these Articles of Association.
- In the event a Guarantor fails to register an address with the Company as provided for in article 220.127.116.11, that Guarantor shall be deemed to have waived his right to be served with, notices minutes and other documents provided for or required to be given by the Company.
- Each Guarantor will be entitled to substitute his registered address and domicilium citandi et executandi with any other address within South Africa which is not a post office box or post restante, by written notice to the Board.
- Unless the contrary is proved any notice, minutes, demand and other document sent by post to a Guarantor at his registered address will be deemed to have been received 14 (fourteen) days after the date of posting thereof. Any such notice, minute, demand and other document may alternatively be hand delivered personally to such Guarantor.
Minutes shall be made of all resolutions and proceedings of General Meetings of the Company, and of all meetings of the Board and committees. Such minutes shall be approved at the next meeting.
The financial yearend of the Company is the 31st December.
The Company shall keep such accounting records as are necessary fairly to present the state of affairs and business of the Company and to explain the transactions and financial position of the Company including:
- Records showing the assets and liabilities of the Company.
- A register of fixed assets showing the respective dates of dates of acquisition and the cost thereof, depreciation, if any, the respective dates of any disposals and the considerations received in respect thereof; and
- Records containing entries from day-to-day activities in sufficient detail of all cash received and paid out of the matters in respect of which receipts and payments take place.
The books of account shall be kept at the registered office of the Company, or at such other place or places as the Directors think fit, and shall always be open to the inspection of the Directors.
The Company’s financial transactions will be conducted through a bank account or accounts opened and operated by the Board on behalf of the Company, which bank account will be opened in accordance with section 30(3)(b)(ii)(aa) of the Income Tax Act, 1962 (Act No.58 of 1962). The opening and operating of any such bank accounts shall be subject to such policies and procedures as the Board may from time to time determine.
The Directors shall from time to time determine whether and to what extent and at what times and places and under what conditions or regulations the accounts and books of the Company or any of them shall be open to the inspection of Members, not being Directors, and no Member (not being a Director) shall have the right of inspecting any account of document of the Company except as conferred by statute or authorised by the Directors or by the Company in a General Meeting.
The Directors shall in respect of every financial year of the Company cause to be made out Annual Financial Statements in accordance with Section 286 of the Act and shall lay them before the Annual General Meeting of the Company in respect of that year.
A copy of the Annual Financial Statements, which are to be laid before the Company in an Annual General Meeting, shall not less than 21 (twenty one) days before the date of the meeting, be sent to every Guarantor of the Company. Provided that this Article shall not require a copy of those documents to be sent to any person, the address of whom the Company is not aware.
The Company shall not be entitled to borrow.
An auditor shall be appointed in accordance with the Act.
The duly appointed auditor of the Company shall, subject to the provisions of the Act, hold office until another appointment or other appointments to the office shall be made at an annual general meeting of the Company, and the provisions of Sections 270 and 271 of the Act shall apply to and be complied with in connection with any appointment proposed to be made, made or not made of an auditor of the Company. The Directors shall fix the remuneration of the auditor from time to time.
Alteration to Articles of Association
Any amendments to these articles must be submitted to the South African Revenue Services (Commissioner for Inland Revenue) for approval.
Requirements for Public Benefit Organisations
The Board shall ensure that the Company complies with the requirements of the Income Tax Act, 1962 (Act 58 of 1962) in relation to its approval as a public benefit organisation and furthermore that it complies with, and incorporates in these articles such amendments as may be required in terms of any statutory changes to such requirements from time to time.