Um ....
some disclaimers: this is not the official position of any organization
with which I am affiliated or have done any work for, while I have
conferred with Mauritius specialists on the issues at hand this is off the
cuff discussion centred. I have not applied a diplomacy overlay or sarcasm
filter. Act here is the Companies Act 2001 as amended. A copy of the Act as
provided by the CRBD (the administrative agency of the Registrar of
Companies) is attached. I don't think the majority of people who are
involved in or are observing Afrinic have taken cognizance of s269A of the
Act.
ISPA’s legal team identified the fact that AFRINIC Resource Members are not
> Registered Members of AFRINIC under Mauritian law as a key concern.
Yes the construct of "registered members" and the following of ARIN style
bylaws rather than alignment with the Mauritian Companies Act is the main
cause of Afrinic's problems. But ...
effectively means that many of the rights provided to Resource Members
> under the Bylaws can be legally challenged in Mauritius. Indeed, a number
> of the legal cases brought against AFRINIC over the past decade hinge on
> the fact that the Mauritian Companies Act limits many governance functions
> to Registered Members
No. The record of litigation reveals that the problem is not because
Mauritius law gives rise to a basis to legally challenge the rights of
Resource Members. The Act is quite clear on this point in s169 provides for
injunctions brought by an "entitled person" which the Act defines to
include any "person upon whom the constitution confers *any* of the rights
and
powers of a shareholder" (own emphasis). It is therefore true to say that
"despite a lack of legal basis to legally challenge the rights of members
certain staff and directors of Afrinic have denied the rights of Resource
Members".
Certain Afrinic staff have asserted, and repeatedly failed in making this
assertion in the courts, that resource members lack standing. This
issue has been fully ventilated in the courts of Mauritius save for the
Privy Council. I don't however see the suits of Middlesex Guildhall making
any radical departure from fairly well grounded principles of company law
and equity (again we'd go into some major weeds if straightforward
statutory resolution isn't possible) and I actually don't really see a path
to even getting the issue appealed. Amusingly one of Afrinic's service
firms is the subject of more than one matter that went to the JCPC on more
than one occasion as it concerned the criminal sanction against a barrister
who was convicted of money laundry charges where drug dealing was at issue
but was not charged with a drug related offence but sentenced such as to
include the context of drug related offenses. The result was getting out of
jail. Same barrister sought to be re-admitted to practice in Mauritius and
appealed the refusal of the Mauritius courts. If you have an interest in
Mauritian law it makes for a good read. It is also why allegations of a
fear of being locked up in some dungeon in Mauritius which has been
expressed on these mailing lists is a little absurd. As a bit of trivia:
The law lords making up the Board in JCPC sit wearing business attire
rather than with all of the regalia. While the building housing the UK
Supreme Court and the JCPC is a beautiful building, it isn't designed such
as to convey extreme majesty and power being somewhat dwarfed by
Westminster Abbey next door.
What the Companies Act does not do is to afford a former director standing
by virtue of Afrinic having failed to remove same director from the roll of
"registered members", unfortunately staff at Afrinic behaved as though it
did and more than a year was spent as a result of that misconduct by
officers of the company. I am not aware of any effort by Afrinic to recover
from same rogue director the money incurred improperly expended.
Moreover the Companies Act does not afford ICANN or non-member industry
bodies or purported industry bodies any legal standing in matters
concerning the internal affairs of the company. The misadventure of Noah
Maina being a sound example of this.
What has also come about is some rather peculiar litigation and activities
around the register of members that arise once there were no persons who
were properly "registered members". The issues here become quite
complicated and problematic but essentially a company needs a substratum
which includes realizable objectives and a base of members or shareholders.
The natural course is to wind up a company when it has no members - an
outcome which is contrary to the best interests of the resource members who
as entitled persons are entitled to injunctive relief. If this issue were
to be fully litigated I suspect it will make its way to London and that the
fees of the army of KCs engaged will make winding up inevitable. However
the engagement of C&A Law by Afrinic and prior to the election last year
the general approach of the Company makes it possible that destruction was
the desired path. Again the solution is rather simple - for the court to
authorize certain resource members to appear on the CRBD kept register -
and for that to be those resource members who have assumed certain risks
pertaining to the Company. Moving forward though the "fix" to the bylaws is
either to eliminate the nonsensical registered member structure (and cause
Afrinic to be a public company limited by guarantee) or to make provision
for acquisition of a right to register as a registered member under certain
circumstances.
There has been a long history of resource members being told that they have
no power because of the bylaws. But this is simply untrue. What is true is
that the bylaws have by design made it exceedingly expensive (and not just
from a monetary perspective) for resource members to exercise their rights.
"include all AFRINIC Resource Members as Registered Members of the company.
> While theoretically interesting, this suggestion effectively means that all
> 2600-odd resource members would need to be registered with the Mauritian
> Registrar of Companies. This does not seem like a particularly practical
> solution."
Rendering all "resource members" as "registered members" is not
theoretically possible and is not "interesting". The entire construct of
"registered members" is to provide for a situation in which the "actual
members" are not actually members. If the CRBD is keeping the register then
you are limited to 50 members (it was 25 but has increased). However what
is not only possible but is fundamentally practical and necessary is for
Afrinic to be a public company limited by guarantee. This would require
maintaining a register of members in accordance with s91 of the Act.
Afrinic will have to terminate several of its existing agreements with
company service providers who have been engaged by Afrinic and it will need
to properly align with the provisions of s269 and s269A of the Companies
Act but it has to do that in any event.
The exercise of "registering" members with the CRBD is because Afrinic has
elected to be incorporated as a private company limited by guarantee rather
than a public company limited by guarantee. This is a choice which produces
the problems. I am concerned that ISPA does not advocate for Afrinic to be
a proper members organization and for it to be a public company limited by
guarantee under the Mauritius Companies' Act. The firmest explanation I
have for the situation is that the bylaws of ARIN which is a Virginia
non-stock corporation was used as the starting point for designing Afrinic
My (admittedly biased by chosen education and self-interested) view is that
it is safest to assume that the Americans are too stupid to own a computer
or legal system. However even if you subscribe to the view that the
American legal system has not been irreparably destroyed by generations of
incompetence and stupidity it is probably better to align with the law of
England and Wales and of Mauritius if you are going to be seated in
Mauritius. There is no shortage of people in Africa who have a British law
degree and there is no reason why Afrinic settled on Goinsamy Chinien
and Ashok Radhakissoon to devise structures which are simply untenable.
Causing Afrinic to discontinue with the nonsensical position of being a
private company limited by guarantee and causing it to be an ordinary
company limited by guarantee (which is public) is not only theoretically
possible and interesting but also aligns with statutory developments under
Mauritius law is precisely because the law of Mauritius is different today
than it was in 2007. There is a case to be made that since 2021 it has been
necessary to revisit Afrinic's bylaws (a term which points to some of the
problem) due to the fact that the Company Constitution does not adequately
address the requirements introduced into the Act [In case anybody is
wondering in 2021 an obligation for outreach was introduced in s269(6) of
the Act and in 2024 an entire s269A was added]. Furthermore the amendments
to s91 are clearly devised with a legislative purpose of requiring a proper
keeping and disclosing to the CRBD information. Now there is a little bit
of a complication arising from the way the Act has been amended and
devised. Section 269A is quite straightforward and will need to be
implemented regardless of whether Afrinic is a public or private company
limited by guarantee (as it applies to "every company limited by
guarantee"). However s269 does not explicitly exclude from operation
s91(3A) (only s91(3)) which is designed to achieve the same objectives but
is designed in the frame of shareholding. The Act explicitly uses the term
"ultimate beneficial owner" and I suspect that as implementation commences
the disconnect will eventually land in the direction that a properly
structured company limited by guarantee without shareholders is for "public
benefit" and that adherence to s269A addresses the purpose of s91(3A). But
I fear that if Afrinic does not before the 30th June 2026 develop the
mechanism by which to come into full compliance with s91 of the Act as
amended the situation will very quickly become incredibly untenable.
This is particularly the case due to the fact that Afrinic is currently a
"declared company" under s230 of the Act - even if the investigation itself
has been kiboshed.
As has been shown by trying to exclude the actual members (resource
members) from proper governance of the Company and resorting to "registered
members" and "community" and the like all that happens is that fertile
space for bad actors to act exists. As I think I've said a few times with
regard to Afrinic there is a very good answer as to solving certain
problems found in the comedy *Liar Liar* to the idiot robbing ATMs at
knifepoint.
Moreover, even if the resource members were to wish for Afrinic to remain a
private company limited by guarantee for whatever reason. [Arguments of
trying to reduce the level of disclosure required, alignment with some
nonsensical and mythical other RIR expectations and "trusteeship" or
whatever]
It is worth looking at what the Act says at present about the restriction
of the number of members. In 2007 the Act proscribed a private company from
having more than 25 shareholders. By extension a private company limited by
guarantee was restricted from having more than 25 members. To circumvent
the restriction and to import a concept from the Virginia statute Afrinic's
2007 bylaws introduced classes of quasi-membership with "registered
members" being the members for the purpose of the Act and "resource
members" being the actual members. The whole scheme was too clever by half
and has an American stench to it. However the Act itself has been changed.
Currently s269(1)(b) provides: "Section 270(a) shall not apply to a company
limited by guarantee or a company limited by both shares and guarantee" and
it is in section 270(a) that we find the provision limiting the number of
shareholders. This addition to s269 was made in 2021 at which time s270(a)
was amended from 25 to 50 shareholders. When the amendments of 2021 and
2024 are considered together the Act now requires companies limited by
guarantee to embark of public education and record collation regardless of
whether the entity is "private" or not.
I am not aware of any private companies limited by guarantee which have
more than 50 members but on the plain text there is now no longer a limit
as to the number of members.
Therefore, while it would in my view be a hairbrained scheme to try to
reshuffle the deck chairs, any dive into the bylaws needs to consider how
to avoid falling foul of the Act. If people really want to keep Afrinic as
a private company limited by guarantee it isn't the Act which requires
the problematic structure. Again it is concerning that ISPA appears to have
been advised on the basis that "fixing the bylaws" does not entail asking
the straightforward questions around statutory amendments in Mauritius. I
suspect that this is a product of the Mauritius practitioners being given
quite specific instructions which constrained them to preserve the fatally
flawed starting assumptions. If you visit a podiatrist and don't tell him
that you had a stroke expect to be given better suited shoes. If you ask a
civil engineer for a bridge to be built they aren't going to solve your
sewage problem. The same principle applies in most fields - the basis of
engagement shapes the output.
ISPA politely suggests that such submissions should be informed by
> consideration of the Bylaws themselves together with considered analysis
> from those who have AFRINIC’s members’ best interests at heart
I, less politely, suggest that submissions need to be informed by regard
for the Act and a clear eyed acceptance of design flaws from the inception
of Afrinic and an appreciation that gross misconduct by certain employees
and former directors of Afrinic are at the core of governance problem.
ISPA notes that submissions to the AFRINIC Bylaws Review Committee are only
> the first step on the review process, and that there will be a number of
> additional opportunities for stakeholders to provide input.
Because the clock of the 30th June 2026 is running I don't think there is
really room for drawn out multiple steps of input approach. The officers of
the company have known (or ought to have known about the amendments to the
Act and C&A Law were retained after the 2021 amendments on the issue of
governance compliance so the approaching deadline in the Act has been in
the pipeline for several years.
Fortunately the committee has sensible people heading the process who can
see the wood for the trees but my money is on internal resistance and a
desire to retain dangerous provisions such as the council of elders and
restricting the nationality of the CEO [I don't understand why ISPA are
proposing introducing additional complexity when the restriction must be
simply removed] will frustrate things.
ISPA trusts that its submission to the AFRINIC Bylaws Review Committee will
be valuable in assisting the Committee in identifying portions of the
Bylaws that are at odds with Mauritian company law so that those problems
can all be remedied.
I am afraid that whatever the engagement brief was, it hasn't really done
much to identify portions of the bylaws that are at odds with Mauritian
company law - particularly not Mauritian company law as amended. What it
really seems to do is to take a set of perceived concerns and to look for
language for the bylaws to be amended to address. That approach ignores
foundational issues.
Paul Hjul
On Thu, 14 May 2026 at 20:27, <zanog-discuss-request(a)lists.nog.net.za>
wrote:
>
> Send zanog-discuss mailing list submissions to
> zanog-discuss(a)lists.nog.net.za
>
> To subscribe or unsubscribe via email, send a message with subject or
> body 'help' to
> zanog-discuss-request(a)lists.nog.net.za
>
> You can reach the person managing the list at
> zanog-discuss-owner(a)lists.nog.net.za
>
> When replying, please edit your Subject line so it is more specific
> than "Re: Contents of zanog-discuss digest..."Today's Topics:
>
> 1. ISPA Statement on Number Resource Society communication
> (Elaine Zinn)
> 2. Re: ISPA Statement on Number Resource Society communication
> (Warwick Ward-Cox)
>
>
>
> ---------- Forwarded message ----------
> From: Elaine Zinn <elaine(a)ispa.org.za>
> To: "'ZANog discuss'" <zanog-discuss(a)lists.nog.net.za>
> Cc:
> Bcc:
> Date: Thu, 14 May 2026 14:10:29 +0200
> Subject: [zanog-discuss] ISPA Statement on Number Resource Society
communication
>
> Dear ZANOG
>
>
>
> ISPA notes that the Number Resource Society (“NRS”) has recently
circulated a statement claiming that “ISPA’s bylaw plan turns your AFRINIC
rights into a gym membership”. By now, AFRINIC members should all be aware
of the dubious reputation of NRS and know that any communication issued by
that organisation is likely to be substantially untethered from facts.
>
>
>
> Nonetheless, ISPA wishes to make the following clear:
>
>
>
> ISPA does not have a “bylaw plan”. ISPA requested that its Mauritian
legal team review the current AFRINIC Bylaws and highlight all of the areas
where they conflict with Mauritian company law. In the interests of
transparency, a first draft of this review was widely shared with ISPA’s
members and with the ZANOG technical community. Clearly, NRS
representatives saw this draft and decided to use it to further misinform
the AFRINIC community.
>
>
>
> ISPA’s legal team identified the fact that AFRINIC Resource Members are
not Registered Members of AFRINIC under Mauritian law as a key concern.
This dissonance effectively means that many of the rights provided to
Resource Members under the Bylaws can be legally challenged in Mauritius.
Indeed, a number of the legal cases brought against AFRINIC over the past
decade hinge on the fact that the Mauritian Companies Act limits many
governance functions to Registered Members.
>
>
>
> ISPA’s legal team has proposed amendments to the Bylaws that would make
it clear that only the directors of AFRINIC are Registered Members of the
organisation, as well as introducing Community Resolutions as a mechanism
for ensuring that resource members can still participate in AFRINIC
governance. This is one approach to resolving the problem, and ISPA freely
acknowledges that it has both pros and cons.
>
>
>
> In the NRS communication, an alternative proposal is made, which is to
include all AFRINIC Resource Members as Registered Members of the company.
While theoretically interesting, this suggestion effectively means that all
2600-odd resource members would need to be registered with the Mauritian
Registrar of Companies. This does not seem like a particularly practical
solution.
>
>
>
> ISPA notes that submissions to the AFRINIC Bylaws Review Committee are
only the first step on the review process, and that there will be a number
of additional opportunities for stakeholders to provide input.
>
>
>
> ISPA trusts that its submission to the AFRINIC Bylaws Review Committee
will be valuable in assisting the Committee in identifying portions of the
Bylaws that are at odds with Mauritian company law so that those problems
can all be remedied.
>
>
>
> ISPA also encourages AFRINIC resource members to make their own
submissions to AFRINIC. ISPA politely suggests that such submissions should
be informed by consideration of the Bylaws themselves together with
considered analysis from those who have AFRINIC’s members’ best interests
at heart.
>
>
>
> Kind regards
>
> ISPA Secretariat
>
> secretariat(a)ispa.org.za
>
> Tel: 010 500 1200
>
>
>
>
>
>
>
>
> ---------- Forwarded message ----------
> From: Warwick Ward-Cox <warwick.ward-cox(a)computerpower.co.za>
> To: ZANog discuss <zanog-discuss(a)lists.nog.net.za>
> Cc: Elaine Zinn <elaine(a)ispa.org.za>
> Bcc:
> Date: Thu, 14 May 2026 20:25:45 +0200
> Subject: [zanog-discuss] Re: ISPA Statement on Number Resource Society
communication
> Nicely put. Thank you.
>
> On Thu, 14 May 2026, 14:12 Elaine Zinn via zanog-discuss, <
zanog-discuss(a)lists.nog.net.za> wrote:
>>
>> Dear ZANOG
>>
>>
>>
>> ISPA notes that the Number Resource Society (“NRS”) has recently
circulated a statement claiming that “ISPA’s bylaw plan turns your AFRINIC
rights into a gym membership”. By now, AFRINIC members should all be aware
of the dubious reputation of NRS and know that any communication issued by
that organisation is likely to be substantially untethered from facts.
>>
>>
>>
>> Nonetheless, ISPA wishes to make the following clear:
>>
>>
>>
>> ISPA does not have a “bylaw plan”. ISPA requested that its Mauritian
legal team review the current AFRINIC Bylaws and highlight all of the areas
where they conflict with Mauritian company law. In the interests of
transparency, a first draft of this review was widely shared with ISPA’s
members and with the ZANOG technical community. Clearly, NRS
representatives saw this draft and decided to use it to further misinform
the AFRINIC community.
>>
>>
>>
>> ISPA’s legal team identified the fact that AFRINIC Resource Members are
not Registered Members of AFRINIC under Mauritian law as a key concern.
This dissonance effectively means that many of the rights provided to
Resource Members under the Bylaws can be legally challenged in Mauritius.
Indeed, a number of the legal cases brought against AFRINIC over the past
decade hinge on the fact that the Mauritian Companies Act limits many
governance functions to Registered Members.
>>
>>
>>
>> ISPA’s legal team has proposed amendments to the Bylaws that would make
it clear that only the directors of AFRINIC are Registered Members of the
organisation, as well as introducing Community Resolutions as a mechanism
for ensuring that resource members can still participate in AFRINIC
governance. This is one approach to resolving the problem, and ISPA freely
acknowledges that it has both pros and cons.
>>
>>
>>
>> In the NRS communication, an alternative proposal is made, which is to
include all AFRINIC Resource Members as Registered Members of the company.
While theoretically interesting, this suggestion effectively means that all
2600-odd resource members would need to be registered with the Mauritian
Registrar of Companies. This does not seem like a particularly practical
solution.
>>
>>
>>
>> ISPA notes that submissions to the AFRINIC Bylaws Review Committee are
only the first step on the review process, and that there will be a number
of additional opportunities for stakeholders to provide input.
>>
>>
>>
>> ISPA trusts that its submission to the AFRINIC Bylaws Review Committee
will be valuable in assisting the Committee in identifying portions of the
Bylaws that are at odds with Mauritian company law so that those problems
can all be remedied.
>>
>>
>>
>> ISPA also encourages AFRINIC resource members to make their own
submissions to AFRINIC. ISPA politely suggests that such submissions should
be informed by consideration of the Bylaws themselves together with
considered analysis from those who have AFRINIC’s members’ best interests
at heart.
>>
>>
>>
>> Kind regards
>>
>> ISPA Secretariat
>>
>> secretariat(a)ispa.org.za
>>
>> Tel: 010 500 1200
>>
>>
>>
>>
>>
>> _______________________________________________
>> zanog-discuss mailing list -- zanog-discuss(a)lists.nog.net.za
>> To unsubscribe send an email to zanog-discuss-leave(a)lists.nog.net.za
>
> _______________________________________________
> zanog-discuss mailing list -- zanog-discuss(a)lists.nog.net.za
> To unsubscribe send an email to zanog-discuss-leave(a)lists.nog.net.za
