Summary

  • In August 2021, AFRINIC's Board recorded Resolution 202108.630, adopting recommendations in a Board Paper about legal cases and representation; the later judicial account linked the arrangement to a named legal team and broad authority exercised by Eddy Kayihura while he was chief executive.
  • Giving one serving chief executive wide litigation authority could have been a sensible response to fast-moving cases. The weakness lay in continuity: a mandate attached to a named person in office did not automatically become a permanent power belonging to AFRINIC, the CEO office in the abstract, another director or outside counsel.
  • After Kayihura's employment ended on 4 November 2022, an appeal was entered in AFRINIC's name. In 2024 SCJ 473, the court held, for that appeal, that the former director said to have caused it lacked authority and that the legal representatives lacked standing to maintain it for the company.
  • The durable repair is not more rhetoric about institutional mandate. It is an exact, inspectable authority record: named holder, office, matters and permitted acts, spending bounds, start and end, vacancy trigger, successor confirmation, counsel acknowledgement, handover, revocation and completion.

L3 — A resolution designed for motion

Corporate litigation rarely waits for a convenient calendar. A pleading deadline arrives whether a board has assembled or not. Counsel may need a decision on evidence, procedure or an interlocutory application before directors can debate every available route. A company facing several proceedings can therefore have an entirely respectable reason to centralise instructions. One accountable executive can collect advice, decide within an approved perimeter and keep lawyers from receiving contradictory directions.

The arrangement is especially understandable when the executive is the serving chief executive, close to the institution's records and answerable to its board.

That is the strongest benign account of AFRINIC Resolution 202108.630. The public Board register says that the Board took note of a Board Paper dated 20 August 2021 concerning legal cases and legal representation, then resolved according to the paper's recommendations. The bounded later account and the later judicial account describe a retained legal team and broad litigation authority given to Eddy Kayihura while he served as CEO. On its face, this was a mechanism for action.

It allowed a private company in contested circumstances to speak to counsel through a recognisable human principal rather than attempting to reconvene its Board for each tactical instruction.

The conflict came later and concerned a specific appeal. Kayihura's employment as CEO ended on 4 November 2022. An appeal was subsequently entered in AFRINIC's name after he had left. The authority of those who caused and maintained it was challenged. In 2024 SCJ 473, the court concluded, for the appeal before it, that the former director said to have caused the appeal did not have the required power or authority, and that the legal representatives lacked standing to maintain it for AFRINIC. The appeal was set aside.

A mechanism built to reduce friction while a particular office-holder was serving could not, without more, prove the authority chain for that later act.

This is why turnover matters. The company did not vanish when its chief executive left. The office of chief executive remained an intelligible corporate office even if its occupant changed or the position stood vacant. But neither fact answers the narrower question: which natural person had power, at the moment of the later filing, to cause that particular appeal and instruct those particular lawyers for the company? Institutional existence, office existence and delegated authority are different facts. Confusing them can make an act look regular from the outside while leaving its legal source unproved.

The consequence in 2024 SCJ 473 was procedural and concrete. Before the underlying controversy could be advanced through that appeal, the court had to decide whether the purported corporate appellant was properly before it through authorised agents. The authority problem defeated the appeal addressed in the judgment. That does not mean the resolution was invalid when it was adopted. It does not mean Kayihura lacked authority while serving as CEO. It does not mean that every later AFRINIC proceeding, retainer, fee, filing or corporate act was unlawful or void.

The lesson is narrower and more useful: a delegation that works in one state of office-holding may not survive the transition to another state unless the instrument or a later competent act says that it does.

That narrowness is important because the subject tempts exaggeration. A courtroom outcome can be made to sound like a verdict on an entire institution, just as an institutional title can be made to sound like a source of public power. Neither move is warranted. AFRINIC is a Mauritian private company performing a useful technical bookkeeping and coordination function for Internet number records. It has real private corporate powers and obligations. It can retain counsel and participate in litigation through properly authorised agents.

It is not a state, legislature, regulator, police force, prosecutor, punishment authority, confiscator or court. Resolution 202108.630 could organise private corporate action; it could not create sovereignty, and the later judgment need not be inflated into an indictment of every corporate act.

The better story is the administrative one. A Board wanted litigation to move. It selected a practical channel. The human being at the centre of that channel later left office. AFRINIC continued, but the old channel could no longer be treated as self-refreshing. When a later appeal depended on the missing link, authority became the threshold issue. A small ambiguity in the design of delegation thus acquired a large procedural consequence.

The document the public cannot see

The limits of the public record should shape the confidence of any analysis. AFRINIC's Board register identifies Resolution 202108.630 and places it in August 2021. The bounded later account dates the act to 23 August, and the archive lists a Board meeting on that day among the month's meetings. Yet the displayed resolution text does not itself map the act to a particular set of meeting minutes. It states that the Board took note of the 20 August Board Paper and resolved according to its recommendations. It does not reproduce the paper.

That missing paper matters because the consequential detail would have lived there. The register does not show the names and exact roles of every retained lawyer, the precise verbs by which instructions could be given, the distinction between current and prospective cases, any spending ceiling, settlement authority, the duration of the mandate, or rules for resignation, dismissal, incapacity, vacancy and succession. It does not disclose the vote. It does not tell a reader whether power was joint or several, whether a substitute could be named, or whether counsel had to obtain a renewed acknowledgement after an office-holder changed.

One should not fill those spaces with imagination. There is no basis here to reconstruct the Board Paper, invent a clause or infer private communications. Nor is absence from this public corpus proof that no other private record ever existed. The public evidence examined here establishes no fresh competent confirmation for the particular appeal considered in 2024 SCJ 473; it does not license a categorical claim that no private document could have existed anywhere. The judicial result supplies the bounded answer that matters: the authority relied upon did not provide the chain required for that appeal.

Official sources have a precise job in this account. The Board register proves what AFRINIC publicly recorded as its act. The judgment proves what the court decided in the proceeding before it. The Mauritius Companies Act supplies the statutory setting in which a private company acts through competent organs and agents. None of those sources settles the wider question of institutional legitimacy merely because it is official. An organisation's own description of its mandate is evidence of what it says about itself, not a grant of public sovereignty.

A judicial ruling on one appeal is authority for that appeal's legal conclusion, not for a sweeping editorial theory about every other dispute.

This discipline also protects the people involved. The record permits no allegation about motive. It does not establish that the Board tried to evade oversight, that a former director acted in bad faith, that counsel knowingly lacked instructions, or that any unnamed participant engineered the defect. A mandate can fail through ordinary institutional drift: a document drafted for urgency, a turnover event, an incomplete handover, and an assumption that the company's unchanged name carries forward the authority behind it. Governance analysis is most credible when it can explain failure without inventing villains.

Five actors hidden inside one corporate name

The phrase “AFRINIC instructed its lawyers” sounds complete. In practice it compresses at least five distinct actors or states into one sentence.

First is AFRINIC's Board, the corporate organ that adopted Resolution 202108.630. Its power to take a corporate decision does not mean every later director, employee or lawyer could exercise the authority that decision created. The Board is the source in the documented chain, not a permanent ambient permission.

Second is Eddy Kayihura, a named natural person. The later judicial account linked the broad litigation authority to him while he was serving as CEO. A human agent can read advice, choose among options and give an instruction. A title cannot do those things by itself. The relevant authority therefore had both a personal and an official dimension: this person, acting in this office, within this delegation.

Third is the office of chief executive. An office is a durable slot in a corporate design. It may outlast any occupant and can carry powers that an instrument clearly attaches to whoever occupies it. But it is not a person, and the mere existence of the office does not prove that a resolution naming a particular office-holder automatically transfers to a successor. That depends on the text and on the competent acts around it. “Eddy Kayihura while CEO” and “the CEO from time to time” are not interchangeable strings.

Fourth is AFRINIC itself, the institution. It can survive departures, vacancies and disputes. It owns institutional rights and bears institutional liabilities. Yet continuity of the legal person is not continuity of every delegation ever issued in its name. If it were, expiry dates, revocations and appointment rules would be largely meaningless. The company remains able to act, but it still must act through a presently competent organ or agent.

Fifth are the external legal representatives. Lawyers can act for a corporate client, but their appearance, prior retainer or possession of files does not manufacture the client's internal authority. Their standing depends on a valid instruction chain reaching back to the company. Counsel may remain the same while the authorised corporate principal changes; the continuity of the legal team cannot bridge that change on its own.

A sixth element is sometimes needed: a later competent confirmation. This is not really another continuing actor but a new institutional act. A Board, receiver or other organ with the relevant power may be able to identify the matter, name the delegate, delimit the acts permitted and confirm the instruction. The point is not that only one form of confirmation can ever work. The point is that the later authority must be identifiable. It cannot be inferred merely from a familiar logo on a filing, an old title, a lawyer's continued participation or repeated use of the company's name.

The appeal considered in 2024 SCJ 473 put these distinctions under pressure. AFRINIC was still AFRINIC. The earlier resolution was still a historical corporate record. The legal representatives were still capable professionals in the abstract. But the question was whether a competent person had caused and maintained that appeal for the company at that time. The court's answer for that transaction was no. Corporate nouns had continued; the operative authority chain had not been shown to continue with them.