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Articles Tagged with Cape Aloe Movement

MOI V0.1

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Central to the registration of The Cape Aloe Movement NPC is, of course, the Memorandum of Incorporation. The MOI is the “Constitution” of the company that defines its raison d’etre and guides the behaviour of its members and Board. Although many of its “best practice” elements are fixed, written into the Companies Act, there are optional clauses in the Act that, unless overridden in the MOI, become part of the MOI. The bespoke wording of each overridden clause is attached to the standard MOI as Schedules.

So, the MOI is made up out of three pieces, which must be read together to get a full picture of the “Constitution” of the company:

  1. CoR 15.1E, a standard form of the MOI wherein the incorporators select either the default clauses as defined in the,
  2. Companies Act, or select to override optional clauses by defining alternative clauses in,
  3. Schedules 1 through 4 attached to Cor 15.1E

Here is a proposed version (V0.1) of CoR 15.1E including X-marks to indicate the use of the standards clauses or alternate clause. The remainder of this post contains and,or comments on the suggested alternate clauses to be added to Schedules 1 though 4.

Name of Company

The Cape Aloe Movement

Objects:

(See this post)

Incorporators
  1. African Aloe (Pty) Ltd
  2. Organic Aloe (Pty) Ltd
  3. Alcare (Pty) Ltd
  4. Kaloes (Pty) Ltd
  5. Cape Aloe SA (Pty) Ltd
Schedule 1, Part D – Memorandum of Incorporation and Company rules
(a)

As contemplated in section 16 (2) of the Act:

The company’s Memorandum of Incorporation may be amended at any other time if a special resolution to amend it is proposed by –

1) the Board of the company; or

2) 20% of the Community Representative members and 20% of the Trader / Converter, Standard members.

(b)

As contemplated in section 15 (3) to (5) of the Act:

The Board must publish any rules made in terms of section 15 (3) to (5) –

1) publishing it on the Company’s official (members only) web site; and

2) by delivering a copy of those rules to each Community Representative member and Trader / Converter, Standard member.

(c)

As contemplated in section 17 (1) of the Act:

The Company must publish a notice of any alteration of the Memorandum of Incorporation or the Rules, made in terms of section 17 (1) by –

1) publishing it on the Company’s official (members only) web site; and

2) by delivering a copy of those rules to each Community Representative member and Trader / Converter, Standard member.

Schedule 1, Part E – Terms and Conditions of Membership

1) The Company makes provision for voting members as well as non-voting members in four categories as defined below.

NOTE: We will need to clearly define each member type and the rules to become – and stay – a member in the Company Rules.

a) Traditional Commercial Tappers (non-voting) – Individuals that follow the tradition of independently harvesting Aloe ferox in the cape aloe region and selling the exudate to traders.

b) Community Representative (voting) – Individuals who have been democratically elected by tappers and, or micro trader / converters, in local communities (as defined by the NEMBA Act) to represent each community as a voting member.

c) Trader / Converter, Micro (non-voting) – Micro entities, as defined by the Small Business Act that trade in Aloe ferox raw material and, or produce intermediate or final products on a commercial basis.

d) Trader / Converter, Standard (voting) – Individuals or entities that trade in Aloe ferox raw material and, or produce intermediate or final products on a commercial basis.

2) Terms, conditions and licencing fees regarding membership of the four categories contemplated in subsection 1) above may be formulated in the rules of the Company.

Schedule 2, Part C – Authority of proxy to delegate

In terms of section 58 (3) of the Act:

Revoke section 58 (3) (b) and replace with –
a proxy may not delegate the proxy’s authority to act on behalf of the shareholder to another person.

Schedule 4, Part B – ex officio directors

In terms of section 66 (4) of the Act:

  1. The Board of Aloe Council of South Africa NPC may select one of its directors to serve as ex officio director the Board; and
  2. the Director-General of the Department of Environmental Affairs of South Africa may select a senior staff member of the Directorate – Biodiversity Economy and Sustainable Use to serve as ex officio director the Board.

 

Biodiversity Forum Work Sessions, 11-12 November 2015 (Post 1)

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Biodiversity Forum Work Sessions, 11-12 November 2015

Attending the four work sessions over past two days have left me with mixed feelings. On the whole, I like to believe, it was constructive. The attendance was low, which gave us the opportunity to engage with each other, as well as DEA, on a one-one-basis. For the most part, both industry and DEA made an effort to engage constructively to create a common understanding of the issues at hand. Of course, both DEA and industry had to make allowances in order for the debate to flow. Although, officially, there were four sessions, each with its own objective, it became clear that issues at hand are quite interrelated, and will need an holistic approach to resolve. I will post the official session notes when they become available, so, for now, here is a conceptual overview of the issues.

The first session dealt with the concept of bioprospecting and the “discovery” phase as defined in the act. The specific question was, “where / when does the discovery phase end?” The view from industry, and the proposal that will be tabled at the Forum, is that bioprospecting ends at the raw material, or maybe, at the ingredient level – but not at product level. At present, the act views cosmetic / product formulation development as bioprospecting. In other words, the act sees any new application of the biomaterial, on any level in the value chain, as bioprospecting. The view from industry is that the value chain can be divided into three distinct levels, ie, raw material; ingredients and products. Activities that relate to the use of ingredients should not be seen as bioprospecting.

At this stage one must try to understand what the act wants to achieve by including all “development” as bioprospecting. It relates to “fair and equitable benefit sharing”, which is a primary objective of the Nagoya protocol. Bioprospecting, as defined in the act, provides the regulator insight into the value (in the broad sense) that a biomaterial is unlocking – and an opportunity to facilitate benefit sharing. Industry contends that there are many alternative ways to facilitate benefit sharing that does not depend on this very onerous definition of bioprospecting.

It soon became clear that “fair and equitable benefit sharing” and how it relates to TK, (Traditional Knowledge), was the big elephant in the room. What is fair and equitable benefit sharing, and how does it relate to TK? On the one hand, there is a strong view that benefit sharing is ONY relevant if there is TK. On the other hand, there is the view that Nagoya has a “Corporate Social Responsibility” approach, which require community uplifting for all bio-value chain activities. We had an offline discussion with a legal expert in this field who, if my understanding is correct, is clear that, “No TK no benefit sharing”.

Based on the assumption of, “No TK no BS”, industry proposed that BABS be modified to clearly separate material transfer matters from benefit sharing matters. The MTA (Material Transfer Agreement) should be renamed to a Trade Agreement, which includes the standard, commercial, aspects of a supplier / customer agreement. Value created in the bio-valuechain though a series of Trade Agreements is on a “fail value” basis – driven by supply and demand forces. Where an indigenous community is involved in the value chain, they will benefit.

Industry proposed that, where, and if, TK is relevant at ANY point along the bio-value chain, BSAs (Benefit Sharing Agreements) should be put in place. BSAs aims to reward the holders for the use of their TK. It may be seen as a form of “royalty” payments for the rights to “indigenous Intellectual property”. It is important to not at this point that BSAs need not be purely based on monetary rewards and need not be negotiated on a one-on-one basis. It is at this point that BABS needs to create space for each industry to develop “best-practice” approaches to deal with TK and BS.

It was evident from the work sessions that the industries around the table are quite diverse and have unique requirements and suggestions for developing a benefit sharing regime for their respective industries. The chair of the work session on best practice was given a clear mandate to make sure that provision for industry best practice is made in the BABS regulation. (and NEMBA act if required)

This post is getting a bit long, so I will post again on permitting and on the issue of TK.

You are invited to contribute by commenting on this post, or by creating discussion threads on the forum.