The Importance of Directors’ Meeting Minutes – “Who, What, Where, When and Why?”
“A company must keep minutes of the meetings of the board, and any of its committees…” (Extract from the Companies Act)
Steinhoff and other high profile corporate scandals both here and overseas highlight the need for directors to ensure that their board and committee meetings (and the decisions taken at them) are correctly and accurately recorded.
The point is that as a company director you are given wide powers by our Companies Act, but you also have to comply with a raft of fiduciary duties and statutory responsibilities. Failure to do so exposes both your company and you personally to substantial risk.
A vitally important aspect of managing this risk is ensuring that proper minutes of your meetings are kept.
Good minute keeping – Who? What? Where? When? Why?
Here’s an idea worth following. U.S. law firm Patterson Belknap Webb & Tyler’s article “A Minute Guide to Minutes” (available here) suggests that you always cover the “5Ws”. In a local context these cover –
- Who? The names of all attendees, their capacities and, if anyone was present for only part of the meeting, which part. Record also any apologies or non-attendances. Remember that you may need to prove later that there was a quorum.
- What? What happened in the meeting in relation to the agenda, the subjects discussed, decisions made and actions taken (resolutions passed must by law be numbered sequentially and dated), summaries of any presentations made by outsiders (such as staff or outside advisers like your lawyers), any important regulatory issues like declarations of conflict of interest (this latter is again a legal requirement), and so on.
Bear in mind the fundamental duty of directors to act in the company’s best interests, to understand the issues facing the company, and to formulate their own, independent views so they can actively contribute at board meetings. The minutes should reflect this. In addition, all directors should be sent a comprehensive pack at least 7 days before the meeting to give them time to prepare, and on an individual basis they should keep their own notes during the meeting and retain them as proof of having applied an independent mind to the issues.
Have your lawyers review the minutes in relation to any contentious issues discussed, particularly where there is any possibility of litigation or investigation by statutory bodies like SARS or the Competition Board.
Generally, strike a balance between too much detail and too little here – ensure that the minutes reflect everything of importance and give an accurate sense of the meeting without drowning in unnecessary detail.
- Where? Ensure that the minutes (and any relevant documents referenced in them) are kept securely by the company secretary or a director for at the very least the statutory minimum of seven years.
- When? It’s important that the minutes be written and approved shortly after meetings, and circulated to all directors whilst the meeting is still fresh in their minds.
- Why? Directors’ meetings are fundamental to the good management of your company and to the decisions that you as a board make on its strategic direction. How these meetings are minuted could prove critical if for instance disputes or litigation or regulatory issues arise in the future.
In a nutshell, since minutes are, once signed by the chair, “evidence of the proceedings of that meeting” and of resolutions adopted, they provide the most important historical record of how and why decisions were taken. Prioritise this vital and legally-required recording process accordingly.