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@lists.nog.net.za wrote:
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When replying, please edit your Subject line so it is more specific than "Re: Contents of zanog-discuss digest..."Today's Topics:
- ISPA Statement on Number Resource Society communication (Elaine Zinn)
- Re: ISPA Statement on Number Resource Society communication (Warwick Ward-Cox)
---------- Forwarded message ---------- From: Elaine Zinn elaine@ispa.org.za To: "'ZANog discuss'" zanog-discuss@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@ispa.org.za
Tel: 010 500 1200
---------- Forwarded message ---------- From: Warwick Ward-Cox warwick.ward-cox@computerpower.co.za To: ZANog discuss zanog-discuss@lists.nog.net.za Cc: Elaine Zinn elaine@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@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@ispa.org.za
Tel: 010 500 1200
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