The election of directors of profit companies is regulated by section 68 of the Companies Act 71 of 2008 (“Companies Act”). In terms of Section 68 of the Companies Act, each director of a company, other than the first director, must be elected by the persons entitled to exercise voting rights in such an election to serve for an indefinite term. Alternatively, such director must serve for a term as set out in the memorandum of incorporation of the particular company.
Unless the company’s memorandum of incorporation provides otherwise, in any election of directors, the election is to be conducted as a series of votes, each of which is on the candidacy of a single individual to fill a single vacancy, with the series of votes continuing until all vacancies on the board at that time have been filled. Furthermore, in each vote to fill a vacancy, each voting right entitled to be exercised may be exercised once, and the vacancy is filled only if a majority of the voting rights exercised support the particular candidate.
Unless the memorandum of incorporation of a company provides otherwise, the board may appoint a person who satisfies the requirements for election as a director to fill any vacancy and serve as a director of the company on a temporary basis until the vacancy has been filled by an election as outlined above. During such a period any person so appointed has all of the powers, functions and duties, and is subject to all of the liabilities, of any other director of the company.