Section 128: Meaning of “Board” and “director”

128. Meaning of “Board” and “director” (1) For the purposes of this Act, “director”— (a) includes a person occupying the position of director of the company by whatever name called; and C35 – 83 [Issue 5] Companies Act (b) includes an alternate director; but (c) does not include a receiver. (2) For the purposes of sections 143 to 157 and 160 to 162, “directors” includes— (a) a person in accordance with whose directions or instructions a person referred to in subsection (1) may be required or is accustomed to act; (b) a person in accordance with whose directions or instructions the Board of the company may be required or is accustomed to act; (c) a person who exercises or who is entitled to exercise or who controls or who is entitled to control the exercise of powers which, apart from the constitution of the company, would fall to be exercised by the Board; and (d) a person to whom a power or duty of the Board has been directly delegated by the Board with that person’s consent or acquiescence, or who exercises the power or duty with the consent or acquiescence of the Board. (3) For the purposes of sections 143 to 157, a director includes a person in accordance with whose directions or instructions a person referred to in subsections (1) and (2) may be required or is accustomed to act in respect of his duties and powers as a director. (4) Where the constitution of a company confers a power on shareholders which is exercisable by the Board, any shareholder who exercises that power or who takes part in deciding whether to exercise that power shall be deemed, in relation to the exercise of the power or any consideration concerning its exercise, to be a director for the purposes of sections 143, 160 and 162. (5) Where the constitution of a company requires a director or the Board to exercise or refrain from exercising a power in accordance with a decision or direction of shareholders, any shareholder who takes part in— (a) the making of any decision that the power should or should not be exercised; or (b) the making of any decision whether to give a direction, as the case may be, shall be deemed, in relation to the making of any such decision, to be a director for the purposes of sections 143 to 146. (6) Subsection (2) shall not include a person to the extent that the person acts only in a professional capacity. (7) In this Act, “Board” or “Board of directors”, in relation to a company, means— (a) the directors of the company where the number is not less than the required quorum acting together as a Board of directors; or (b) where the company has only one director, that director. [Issue 5] C35 – 84 Revised Laws of Mauritius Sub-Part B – Powers of Management