To provide for the incorporation, registration, organisation and management of companies, the capitalisation of profit companies, and the registration of offices of foreign companies carrying on business within the Republic; to define the relationships between companies and their respective shareholders or members and directors; to provide for equitable and efficient amalgamations, mergers and takeovers of companies; to provide for efficient rescue of financially distressed companies; to provide appropriate legal redress for investors and third parties with respect to companies; to establish a Companies and Intellectual Property Commission and a Takeover Regulation Panel to administer the requirements of the Act with respect to companies, to establish a Companies Tribunal to facilitate alternative dispute resolution and to review decisions of the Commission; to establish a Financial Reporting Standards Council to advise on requirements for financial record-keeping and reporting by companies; to repeal the Companies Act, 1973 (Act No. 61 of 1973), and make amendments to the Close Corporations Act, 1984 (Act No. 69 of 1984), as necessary to provide for a consistent and harmonious regime of business incorporation and regulation; and to provide for matters connected therewith.
A: Close Corporations Act, 1984 1.
[Definition of "accounting records" inserted by s.
[Definition of "acquiring party" inserted by s.
[Definition of "all or the greater part of the assets or undertaking" inserted by s.
[Para. (b) substituted by s.
[Definition of "audit" substituted by s.
"Auditing Profession Act" means the Auditing Profession Act, 2005 (Act No.
[Definition of "auditor" substituted by s.
"Banks Act" means the Banks Act, 1990 (Act No.
[Definition of "Banks Act" substituted by s.
dispose or direct the disposition of the companys securities, or any part of a distribution in respect of the securities, but does not include any interest held by a person in a unit trust or collective investment scheme in terms of the Collective Investment Schemes Act, 2002 (Act No.
"central securities depository" has the meaning set out in section 1 of the Securities Services Act, 2004 (Act No.
"close corporation" means a juristic person incorporated under the Close Corporations Act, 1984 (Act No.
[Words preceding para. (a) substituted by s.
was in existence and recognised as an existing company in terms of the Companies Act, 1973 (Act No.
was deregistered in terms of the Companies Act, 1973 (Act No.
"Competition Act", means the Competition Act, 1998 (Act No.
[Definition of "convertible securities" substituted by the definition of "convertible" by s.
[Definition of "convertible" inserted by s.
"co-operative" means a juristic person as defined in the Co-operatives Act, 2005 (Act No.
[Words preceding subpara. (1) substituted by s.
[Words preceding item (aa) substituted by s.
[Para. (c) substituted by s.
[Definition of "domesticated company" inserted by s.
"Electronic Communications and Transactions Act" means the Electronic Communications and Transactions Act, 2002 (Act No.
"exchange" when used as a noun, has the meaning set out in section 1 of the Securities Services Act, 2004 (Act No.
[Definition of "group of companies" substituted by s.
[Definition of "holding company" substituted by s.
[Definition of "inspector" substituted by s.
[Definition of "investigator" deleted by s.
[Definition of "inter-related" substituted by s.
[Definition of "investigator" inserted by s.
[Para. (a) substituted by s.
"listed securities" has the meaning set out in section 1 of the Securities Services Act, 2004 (Act No.
"Master" means the officer of the High Court, referred to in section 2 of the Administration of Estates Act, 1965 (Act No.
[Definition of "Master" substituted by s.
a close corporation, has the meaning set out in section 1 of the Close Corporations Act, 1984 (Act No.
[Definition of "member" substituted by s.
"Memorandum of Incorporation".
[Definition of "Memorandum of Incorporation" substituted by the definition of "Memorandum", or "Memorandum of Incorporation" by s.
[Definition of "Memorandum", or "Memorandum of Incorporation" inserted to substitute definition of "Memorandum of Incorporation" by s.
"nominee" has the meaning set out in section 1 of the Securities Services Act, 2004 (Act No.
[Definition of "ordinary resolution" substituted by s.
"participant" has the meaning set out in section 1 of the Securities Services Act, 2004 (Act No.
does not include any interest held by a person in a unit trust or collective investment scheme in terms of the Collective Investment Schemes Act, 2002 (Act No.
[Definition of "personal liability company" substituted by s.
[Definition of "pre-incorporation contract" substituted by s.
[Definition of "prescribed officer" substituted by s.
"registered trade union" means a trade union registered in terms of section 96 of the Labour Relations Act, 1995 (Act No.
registered external company, means the certificate of registration issued to it in terms of this Act or the Companies Act, 1973 (Act No.
[Para. (c) amended by s.
[Para. (d) inserted by s.
[Definition of "securities" substituted by s.
[Definition of "securities register" inserted by s.
[Definition of "series of integrated transactions" inserted by s.
[Definition of "special resolution" substituted by s.
is listed as a public entity in Schedule 2 or 3 of the Public Finance Management Act, 1999 (Act No.
is owned by a municipality, as contemplated in the Local Government: Municipal Systems Act, 2000 (Act No.
"uncertificated securities" means any securities defined as such in section 29 of the Securities Services Act, 2004 (Act No.
"wholly-owned subsidiary" has the meaning determined in accordance with section 3(1)(b).
that first person has the ability to materially influence the policy of the juristic person in a manner comparable to a person who, in ordinary commercial practice, would be able to exercise an element of control referred to in paragraph (a), (b) or (c).
a wholly-owned subsidiary of another juristic person if all of the general voting rights associated with issued securities of the company are held or controlled, alone or in any combination, by persons contemplated in paragraph (a).
a person in a fiduciary capacity are to be treated as held by the beneficiary of those voting rights.
For the purposes of subsection (2), hold, or any derivative of it, refers to the registered or direct or indirect beneficial holder of securities conferring a right to vote.
in the case of a distribution contemplated in paragraph (a) of the definition of distribution in section 1, 12 months following that distribution.
unless the Memorandum of Incorporation of the company provides otherwise, when applying the test in respect of a distribution contemplated in paragraph (a) of the definition of "distribution" in section 1, a person is not to include as a liability any amount that would be required, if the company were to be liquidated at the time of the distribution, to satisfy the preferential rights upon liquidation of shareholders whose preferential rights upon liquidation are superior to the preferential rights upon liquidation of those receiving the distribution.
excluding any public holiday, Saturday or Sunday that falls on or between the days contemplated in paragraphs (a) and (b), respectively.
Labour Relations Act, 1995 (Act No.
[Item (ff) substituted by s.
[Item (gg) substituted by s.
[Item (hh) added by s.
[Item (ii) added by s.
[Words following item (ii) substituted by s.
the provisions of this Act prevail in any other case, except to the extent provided otherwise in subsection (5) or section 118(4).
If there is a conflict between a provision of Chapter 8 and a provision of the Public Service Act, 1994 (Proclamation No.103 of 1994), the provisions of that Act prevail.
to the extent that it is impossible to apply and comply with one of the inconsistent provisions without contravening the second, the provisions of this Act prevail, except to the extent that this Act expressly provides otherwise.
[Subs. (6) inserted by s.
void to the extent that it defeats or reduces the effect of a prohibition or requirement established by or in terms of an unalterable provision of this Act.
A person may apply to the Companies Tribunal for an administrative order exempting an agreement, transaction, arrangement, resolution or provision of a companys Memorandum of Incorporation or rules from any prohibition or requirement established by or in terms of an unalterable provision of this Act, other than a provision that falls within the jurisdiction of the Panel.
the extent to which the agreement, transaction, arrangement, resolution or provision infringes or would infringe the relevant prohibition or requirement.
the use of any illustrations, examples, headings or other aids to reading and understanding in the prospectus, notice, disclosure or document.
The Commission may publish guidelines for methods of assessing whether a prospectus, notice, disclosure or document satisfies the requirements of subsection (4)(b).
An unaltered electronically or mechanically generated reproduction of any document, other than a share certificate, may be substituted for the original for any purpose for which the original could be used in terms of this Act, if that reproduction satisfies any applicable prescribed requirements as to the form or manner of reproduction.
[Subs. (7) substituted by s.
is such that it would reasonably mislead a person reading the document, record, statement or notice.
is such as would reasonably mislead a person to whom the document, record, statement or notice is, or is to be, delivered.
each of those persons signs a separate duplicate original of the document, in person or as contemplated in paragraph (a), and in such a case, the several signed duplicate originals, when combined, constitute the entire document.
satisfies any prescribed requirements.
declare any system established or accredited by the Commission to be an acceptable mechanism for the filing of any particular document, in lieu of any other requirements set out in legislation relating to the filing of that document.
has the effect of negating, restricting, limiting, qualifying, extending or otherwise altering the substance or effect of an unalterable provision of the Act, that provision of the company.s Memorandum of Incorporation must not be construed as being contrary to section 15(l)(a).
[Subs. (15) inserted by s.
provide a predictable and effective environment for the efficient regulation of companies.
Two types of companies may be formed and incorporated under this Act, namely profit companies and non-profit companies.
a public company, in any other case.
was formed pursuant to Letters Patent or Royal Charter before 31 May 1962.
local government matters may request the Minister to grant a total, partial or conditional exemption from one or more provisions of this Act, applicable to all state-owned companies owned by a municipality, any class of such enterprises, or to one or more particular such enterprises, on the grounds that those provisions overlap or duplicate an applicable regulatory scheme established in terms of any other national legislation.
subject to any limits or conditions necessary to ensure the achievement of the purposes of this Act.
Every provision of this Act applies to a non-profit company, subject to the provisions, limitations, alterations or extensions set out in this section, and in Schedule 1.
Part D of Chapter 2 - Capitalisation of profit companies.
Part E of Chapter 2 - Securities registration and transfer.
Section 66(8) and (9) and section 68 - Remuneration and election of directors.
regulations contemplated in section 30(7).
Chapter 4 - Public offerings of company securities.
Chapter 5 - Takeovers, offers and fundamental transactions, except to the extent contemplated in item 2 of Schedule 1.
Sections 146(d), and 152(3)(c) - Rights of shareholders to approve a business rescue plan, except to the extent that the non-profit company is itself a shareholder of a profit company that is engaged in business rescue proceedings.
Section 164 - Dissenting shareholders appraisal rights, except to the extent that the non-profit company is itself a shareholder of a profit company.
[Subs. (2) substituted by s.
when applied to a non-profit company, are subject to the provisions of item 4 of Schedule 1.
With respect to a non-profit company that has voting members, a reference in this Act to "a shareholder", "the holders of a companys securities", "holders of issued securities of that company" or "a holder of voting rights entitled to be voted is a reference to the voting members of the non-profit company.
[Subpara. (ii) substituted by s.
in the case of a profit company, may be the registration number of the company together with the relevant expressions required by subsection (3).
a registered trade mark belonging to a person other than the company, or a mark in respect of which an application has been filed in the Republic for registration as a trade mark or a well-known trademark as contemplated in section 35 of the Trade Marks Act, 1993 (Act No.
[Para. (b) inserted by s.
[Original para. (b) renumbered as para. (c) by s.
[Original para. (c) renumbered as para. (d) by s.
The word "Incorporated" or its abbreviation "Inc. ", in the case of a personal liability company.
The expression "Proprietary Limited" or its abbreviation, "(Pty) Ltd.", in the case of a private company.
The word "Limited" or its abbreviation, "Ltd.", in the case of a public company.
The expression "SOC Ltd." in the case of a state-owned company.
The expression "NPC", in the case of a non-profit company.
alternative expressions, in any official language, which may be used in substitution for any expression required to follow a companys name in terms of subsection (3).
[Subs. (4) substituted by s.
A person may reserve one or more names to be used at a later time, either for a newly incorporated company, or as an amendment to the name of an existing company, by filing an application together with the prescribed fee.
the name as applied for is already reserved in terms of this section.
[Words preceding subpara. (i) substituted by s.
the South African Human Rights Commission may apply to the Companies Tribunal for a determination and order in terms of section 160.
A person for whom a name has been reserved in terms of subsection (2) may transfer that reservation to another person by filing a signed notice of the transfer together with the prescribed fee.
cancelling a name reservation.
repeatedly attempting to reserve names for the purpose of selling access to names, or trading in or marketing reserved names, the Commission may apply to a court for an order prohibiting the person or persons from applying to reserve any names in terms of this section for a period that the court considers just and reasonable in the circumstances.
a pattern of unusually frequent transfers of reserved names without apparent legitimate cause having regard to the nature of the persons profession or business.
renew, for a period of two years, the registration of a name as a defensive name, in respect of which he or she has furnished proof, to the satisfaction of the Commission, that he or she has a direct and material interest.
The registration of a defensive name may be transferred to another person by notice in the prescribed manner and form and upon payment of the prescribed fee.
[Subs. (10) inserted by s.
[Heading of s. 13 substituted by s.
filing a Notice of Incorporation, in accordance with subsection (2).
accompanied by a copy of the Memorandum of Incorporation, subject to any declaration contemplated in section 6(14)(b).
If a companys Memorandum of Incorporation includes any provision contemplated in section 15(2)(b) or (c), the Notice of Incorporation filed by the company must include a prominent statement drawing attention to each such provision, and its location in the Memorandum of Incorporation.
the Commission reasonably believes that any of the initial directors of the company, as set out in the Notice, are disqualified in terms of section 69(8), and the remaining directors are fewer than required by or in terms of section 66(2).
Subject to subsections (6) and (7), a foreign company may apply in the prescribed manner and form, accompanied by the prescribed application fee, to transfer its registration to the Republic from the foreign jurisdiction in which it is registered, and thereafter exists as a company in terms of this Act as if it had been originally so incorporated and registered.
[Subs. (5) inserted by s.
will no longer be registered in another jurisdiction.
[Subs. (7) inserted by s.
establishing requirements for each domesticated company to harmonise its Memorandum of Incorporation with this Act.
[Subs. (8) inserted by s.
Subsections (3) and (4) and section 14, each read with the changes required by the context, apply to an application in terms of subsections (5) to (7).
[Subs. (9) inserted by s.
Upon compliance of the requirements for registration of a domesticated company as contemplated in terms of this section, the Commissioner must issue to such company a registration certificate to the effect that such registration has taken place and that it deemed that the company has been incorporated under this Act.
[Subs. (11) inserted by s.
must take the steps set out in subsection (1)(b), using the companys registration number, followed by "Inc.", (Pty) Ltd", "Ltd."
issue and deliver to the company an amended registration certificate showing the amended name of the company.
the company is incorporated under this Act as from the date, and the time, if any, stated in the certificate.
is void to the extent that it contravenes, or is inconsistent with, this Act, subject to section 6(15).
[Subpara. (i) substituted by s.
[Subpara. (iii) inserted by s.
not include any provision that negates, restricts, limits, qualifies, extends or otherwise alters the substance or effect of an unalterable provision of this Act, except to the extent contemplated in paragraph (a)(iii).
filing a copy of those rules.
on a permanent basis only if it has been ratified by an ordinary resolution at the meeting contemplated in subparagraph (i).
the companys board may not make a substantially similar rule within the ensuing 12 months, unless it has been approved in advance by ordinary resolution of the shareholders.
[Subs. (5) substituted by s.
Any failure to ratify the rules of a company does not affect the validity of anything done in terms of those rules during the period that they had an interim effect as provided in subsection (4)(c)(i).
[Subs. (5A) inserted by s.
in the exercise of their respective functions within the company.
The shareholders of a company may enter into any agreement with one another concerning any matter relating to the company, but any such agreement must be consistent with this Act and the companys Memorandum of Incorporation, and any provision of such an agreement that is inconsistent with this Act or the companys Memorandum of Incorporation is void to the extent of the inconsistency.
A companys Memorandum of Incorporation may provide different requirements than those set out in subsection (1)(c)(i) with respect to proposals for amendments.
the requirements of subsection (1)(c)(ii) do not apply to the company.
does not require a special resolution as contemplated in subsection (1)(c)(ii).
If a profit company amends its Memorandum of Incorporation in such a manner that it no longer meets the criteria for its particular category of profit company, the company must also amend its name at the same time by altering the ending expression as appropriate to reflect the category of profit company into which it now falls.
the Commission may require the company to file a full copy of its amended Memorandum of Incorporation within a reasonable time.
the date, if any, set out in the Notice of Amendment.
[Subs. (9) substituted by s.
may be adversely affected if the joint and several liability of any of the directors for the debts and liabilities of the company is terminated as a consequence of the amendment to the Memorandum of Incorporation.
A person who receives, or is entitled to receive, a notice in terms of subsection (10) may apply to a court in the prescribed manner and form for an order sufficient to protect the interests of that person.
filing a notice of the alteration.
At any time, a company that has filed its Memorandum of Incorporation may file one or more translations of it, in any official language or languages of the Republic.
A translation of a companys Memorandum of Incorporation must be accompanied by a sworn statement by the person who made the translation, stating that it is a true, accurate and complete translation of the Memorandum of Incorporation.
the Commission may require the company to file a consolidated revision of its Memorandum of Incorporation, as so altered or amended.
a statement by an attorney or notary public, stating that the consolidated revision is a true, accurate and complete representation of the companys Memorandum of Incorporation, as altered and amended up to the date of the statement.
a consolidated revision filed in terms of section 17(5), unless the consolidated revision has subsequently been ratified by a special resolution at a general shareholders meeting of the company.
The latest version of a companys Memorandum of Incorporation that has been endorsed by the Commission in terms of this Part prevails in the case of any conflict between it and any other purported version of the companys Memorandum of Incorporation.
any further provisions of the companys Memorandum of Incorporation.
A person is not, solely by reason of being an incorporator, shareholder or director of a company, liable for any liabilities or obligations of the company, except to the extent that this Act or the companys Memorandum of Incorporation provides otherwise.
the effect of subsection (3) on a personal liability company.
the shareholders and directors or prescribed officers of the company, no person may rely on such limitation, restriction or qualification to assert that an action contemplated in paragraph (a) is void.
If a companys Memorandum of Incorporation limits, restricts or qualifies the purposes, powers or activities of that company, or limits the authority of the directors to perform an act on behalf of the company, the shareholders, by special resolution, may ratify any action by the company or the directors that is inconsistent with any such limit, restriction or qualification, subject to subsection (3).
An action contemplated in subsection (2) may not be ratified if it is in contravention of this Act.
One or more shareholders, directors or prescribed officers of a company, or a trade union representing employees of the company, may apply to the High Court for an appropriate order to restrain the company from doing anything inconsistent with this Act.
did not have actual knowledge of the limit, restriction or qualification.
a limitation, restriction or qualification contemplated in this section, unless that action has been ratified by the shareholders in terms of subsection (2).
make any further order the court considers appropriate to give effect to a declaration contemplated in paragraph (a).
after being incorporated, the company rejects any part of such an agreement or action.
If, within three months after the date on which a company was incorporated, the board has neither ratified nor rejected a particular pre-incorporation contract, or other action purported to have been made or done in the name of the company, or on its behalf, as contemplated in subsection (1), the company will be regarded to have ratified that agreement or action.
the liability of a person under subsection (2) in respect of the ratified agreement or action is discharged.
If a company rejects an agreement or action contemplated in subsection (1), a person who bears any liability in terms of subsection (2) for that rejected agreement or action may assert a claim against the company for any benefit it has received, or is entitled to receive, in terms of the agreement or action.
A company must not carry on its business recklessly, with gross negligence, with intent to defraud any person or for any fraudulent purpose.
[Subs. (1) substituted by s.
If the Commission has reasonable grounds to believe that a company is engaging in conduct prohibited by subsection (1), or is unable to pay its debts as they become due and payable in the normal course of business, the Commission may issue a notice to the company to show cause why the company should be permitted to continue carrying on its business, or to trade, as the case may be.
If a company to whom a notice has been issued in terms of subsection (2) fails within 20 business days to satisfy the Commission that it is not engaging in conduct prohibited by subsection (1), or that it is able to pay its debts as they become due and payable in the normal course of business, the Commission may issue a compliance notice to the company requiring it to cease carrying on its business or trading, as the case may be.
[Subs. 3 substituted by s.
subject to subsection (2A), is engaging in a course of conduct, or has engaged in a course or pattern of activities within the Republic over a period of at least six months, such as would lead a person to reasonably conclude that the company intended to continually engage in business or non-profit activities within the Republic.
[Original subs. (2) substituted by subs. (2)-(2A) of s.
acquiring any interest in any property within the Republic.
[Subs. (2A) inserted by s. 15 of Act 3/2011 as part of substitution of original subs.
subsequently, by filing a notice of change of registered office, together with the prescribed fee.
five business days after the date on which the notice was filed.
in the case of an external company whose name is a foreign registration number but does not indicate the name of the foreign jurisdiction in which it was incorporated, append to its name on the registry the name of that jurisdiction in a manner comparable to that required for a company under section 11(3)(a).
if it fails to register within the time allowed in paragraph (a), to cease carrying on its business or activities within the Republic.
for a period of seven years, or any longer period of time specified in any other applicable public regulation, subject to subsection (2).
[Para. (d) substituted by s.
on which each such resolution was adopted.
the records required in terms of section 85, if that section applies to the company.
in other circumstances prescribed by the Minister.
The records referred to in section 24 must be accessible at or from the companys registered office or another location, or other locations, within the Republic.
are moved from one location to another.
the securities register of a profit company, or the members register of a non-profit company that has members, as mentioned in section 24(4).
[Original subs. (1) substituted by subs. (1)-(5) of s.
A person not contemplated in subsection (1) has a right to inspect or copy the securities register of a profit company, or the members register of a non-profit company that has members, or the register of directors of a company, upon payment of an amount not exceeding the prescribed maximum fee for any such inspection.
[Original subs. (2) substituted by subs. (1)-(5) of s.
In addition to the information rights set out in subsections (1) and (2), the Memorandum of Incorporation of a company may establish additional information rights of any person, with respect to any information pertaining to the company, but no such right may negate or diminish any mandatory protection of any record required by or in terms of Part 3 of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000).
[Subs. (3) inserted by s. 17 of Act 3/2011 as part of substitution of original subs.
in accordance with the Promotion of Access to Information Act, 2000 (Act No.
[Subs. (5) inserted by s. 17 of Act 3/2011 as part of substitution of original subs.
[Original subs. (3) renumbered as subs. (6) by s.
the Promotion of Access to Information Act, 2000 (Act No.
any other public regulation.
[Original subs. (4) renumbered as subs. (7) by s.
[Original subs. (9) by s.
A company must have a financial year, ending on a date set out in the companys Notice of Incorporation, subject to any change made in terms of subsection (4).
ends on the date set out in the Notice of Incorporation, which may not be more than 15 months after the date contemplated in paragraph (a).
ends on the first anniversary of the date contemplated in paragraph (a), unless the financial year end has been changed as contemplated in subsection (4).
the date as changed may not result in a financial year ending more than 15 months after the end of the preceding financial year.
Despite subsection (2)(b) or (3), the financial year of a company that has changed the date contemplated in subsection (1) ends on the date as changed.
[Subs. (6) deleted by s.
The financial year of the company is its annual accounting period.
including any prescribed accounting records, which must be kept in the prescribed manner and form.
A companys accounting records must be kept at, or be accessible from, the registered office of the company.
any person to falsify a companys accounting records.
incomplete in any material particular, subject only to subsection (3).
setting out the steps required to obtain a copy of the financial statements that it summarises.
form and content requirements for summaries contemplated in subsection (3).
different categories of profit companies.
the summary does not comply with the requirements of subsection (3), or is materially false or misleading.
Each year, a company must prepare annual financial statements within six months after the end of its financial year, or such shorter period as may be appropriate to provide the required notice of an annual general meeting in terms of section 61(7).
[Item (aa) substituted by s.
independently reviewed in a manner that satisfies the regulations made in terms of subsection (7), subject to subsection (2A).
[Item (bb) substituted by s.
does not relieve the company of any requirement to have its financial statements audited or reviewed in terms of another law, or in terms of any agreement to which the company is a party.
[Subs. (2A) inserted by s.
be presented to the first shareholders meeting after the statements have been approved by the board.
details of service contracts of current directors and individuals who hold any prescribed office in the company.
otherwise in connection with the carrying on of the affairs of the company or any other company within the same group of companies.
[Para. (f) substituted by s.
the manner, form and procedures for the conduct of an independent review under subsection (2)(b)(ii)(bb), as well as the professional qualifications, if any, and duties of persons who may conduct such reviews and the accreditation of professions whose members may conduct such reviews.
Despite section 1 of the Auditing Profession Act, an independent review of a company's annual financial statements required by this section does not constitute an audit within the meaning of that Act.
on demand to receive without charge one copy of any annual financial statements of the company required by this Act.
If a judgment creditor of a company has been informed, by a person whose duty it is to execute the judgment, that there appears to be insufficient disposable property to satisfy that judgment, the judgement creditor is entitled within five business days after making a demand, to receive without charge, one copy of the most recent annual financial statements of the company.
Trade unions must, through the Commission and under conditions as determined by the Commission, be given access to company financial statements for purposes of initiating a business rescue process.
otherwise impede, interfere with, or attempt to frustrate the reasonable exercise by any person of the rights set out in this section.
[Subs. (4) inserted by s.
not misstate its name or registration number in a manner likely to mislead or deceive any person.
If the Commission has issued to a company a registration certificate with an interim name, as contemplated in section 14(2)(b), the company must use its interim name, until its name has been amended.
use a form of name for any purpose if, in the circumstances, the use of that form of name is likely to convey a false impression that the name is the name of a company.
[Subs. (7) deleted by s.
Every external company must file an annual return in the prescribed form with the prescribed fee, and within the prescribed period after the anniversary of the date on which it was registered in terms of section 23(1).
Each year, in its annual return filed in terms of subsection (1), every company must designate a director, employee or other person who is responsible for the companys compliance with the requirements of this Part, and Chapter 3, if it applies to the company.
A private company, personal liability company, or non-profit company is not required to comply with the extended accountability requirements set out in Chapter 3, except to the extent contemplated in section 84(1)(c), or as required by the companys Memorandum of Incorporation.
surrendered to that company in the exercise of appraisal rights in terms of section 164, have the same status as shares that have been authorised but not issued.
the regulations contemplated in item 6(3) of Schedule 5.
the board of the company, in the manner contemplated in subsection (3), except to the extent that the Memorandum of Incorporation provides otherwise.
determine the preferences, rights, limitations or other terms of shares in a class contemplated in subsection (1)(d).
If the board of a company acts pursuant to its authority contemplated in subsection (3), the company must file a Notice of Amendment of its Memorandum of Incorporation, setting out the changes effected by the board.
All of the shares of any particular class authorised by a company have preferences, rights, limitations and other terms that are identical to those of other shares of the same class.
the preferences, rights, limitations and other terms determined by or in terms of the companys Memorandum of Incorporation in accordance with section 36.
the holders of that class of shares are entitled to receive the net assets of the company upon its liquidation.
the holders of at least one class of the companys shares, irrespective of whether it is the same as any class contemplated in paragraph (a), are entitled to receive the net assets of the company upon its liquidation.
provide for shares of that class to have preference over any other class of shares with respect to distributions, or rights upon the final liquidation of the company.
the manner in which a fact affects the preferences, rights, limitations or other terms of shares must be expressly determined by or in terms of the companys Memorandum of Incorporation, in accordance with section 36.
was present at the meeting, and voted against that resolution.
as determined in accordance with the rules of the Central Securities Depository, in the case of uncertificated securities.
The board of a company may resolve to issue shares of the company at any time, but only within the classes, and to the extent, that the shares have been authorised by or in terms of the companys Memorandum of Incorporation, in accordance with section 36.
in excess of the number of authorised shares of any particular class, the issuance of those shares may be retroactively authorised in accordance with section 36 within 60 business days after the date on which the shares were issued.
the company must return to any person the fair value of the consideration received by the company in respect of that share issue to the extent that it is nullified, together with interest in accordance with the Prescribed Rate of Interest Act, 1975 (Act No.
failed to vote against the issue of those shares, despite knowing that the shares had not been authorised in accordance with section 36.
capitalisation shares issued as contemplated in section 47.
If a private company proposes to issue any shares, other than as contemplated in subsection (1)(b), each shareholder of that private company has a right, before any other person who is not a shareholder of that company, to be offered and, within a reasonable time to subscribe for, a percentage of the shares to be issued equal to the voting power of that shareholders general voting rights immediately before the offer was made.
A private or personal liability companys Memorandum of Incorporation may limit, negate, restrict or place conditions upon the right set out in subsection (2), with respect to any or all classes of shares of that company.
shares not subscribed for by a shareholder within the reasonable time contemplated in subsection (2), may be offered to other persons to the extent permitted by the Memorandum of Incorporation.
as a capitalisation share as contemplated in section 47.
the company must issue those shares and cause the name of the holder to be entered on the companys securities register in accordance with Part E of this Chapter.
[Words preceding para. (5) substituted by s.
cause the issued shares to be transferred to a third party, to be held in trust and later transferred to the subscribing party in accordance with a trust agreement.
to the extent that the instrument is dishonoured after becoming negotiable, or that the subscribing party has failed to fulfil its obligations under the agreement, must be returned to the company and cancelled, on demand by the company.
in the case of an agreement, the subscribing party has failed to fulfil any obligation in terms of the agreement for a period of at least 40 business days after the date on which the obligation was due to be fulfilled.
nominee of a person contemplated in paragraph (a) or (b).
pursuant to an offer to the public, as defined in section 95(1)(h), read with section 96.
An issue of shares, securities convertible into shares, or rights exercisable for shares in a transaction, or a series of integrated transactions, requires approval of the shareholders by special resolution if the voting power of the class of shares that are issued or issuable as a result of the transaction or series of integrated transactions will be equal to or exceed 30 percent of the voting power of all the shares of that class held by shareholders immediately before the transaction or series of transactions.
taken together, they lead to substantial involvement in a business activity that did not previously form part of the companys principal activity.
failed to vote against the issue of those securities, despite knowing that the issue of those securities was inconsistent with this section.
In this section, future director or future prescribed officer does not include a person who becomes a director or prescribed officer of the company more than six months after acquiring a particular option or right.
the related shares or other securities are to be issued.
any securities convertible into shares of any class, constitutes also the decision of the board to issue the authorised shares into which the securities may be converted.
into which any securities could be converted, had not been authorised in terms of section 36.
"security document" includes any document by which a debt instrument is offered or proposed to be offered, embodying the terms and conditions of the debt instrument including, but not limited to, a trust deed or certificate.
must determine whether each such debt instrument is secured or unsecured.
allotment of securities, redemption by the company, or substitution of the debt instrument for shares of the company, provided that the securities to be allotted or substituted in terms of any such privilege, are authorised by or in terms of the companys Memorandum of Incorporation in accordance with section 36.
Every security document must clearly indicate, on its first page, whether the relevant debt instrument is secured or unsecured.
the board is satisfied that the person has the requisite knowledge and experience to carry out the duties of a trustee.
be approved by the holders of at least 75 percent by value of debt instruments present at a meeting called for that purpose.
with respect to a specific act or omission, or of the trustee dying or ceasing to act.
In this section, "financial assistance" does not include lending money in the ordinary course of business by a company whose primary business is the lending of money.
Except to the extent that the Memorandum of Incorporation of a company provides otherwise, the board may authorise the company to provide financial assistance by way of a loan, guarantee, the provision of security or otherwise to any person for the purpose of, or in connection with, the subscription of any option, or any securities, issued or to be issued by the company or a related or inter-related company, or for the purchase of any securities of the company or a related or inter-related company, subject to subsections (3) and (4).
the terms under which the financial assistance is proposed to be given are fair and reasonable to the company.
In addition to satisfying the requirements of subsection (3), the board must ensure that any conditions or restrictions respecting the granting of financial assistance set out in the companys Memorandum of Incorporation have been satisfied.
a prohibition, condition or requirement contemplated in subsection (4).
failed to vote against the resolution or agreement, despite knowing that the provision of financial assistance was inconsistent with this section or a prohibition, condition or requirement contemplated in subsection (4).
an amount to defray the persons expenses for removal at the companys request.
Except to the extent that the Memorandum of Incorporation of a company provides otherwise, the board may authorise the company to provide direct or indirect financial assistance to a director or prescribed officer of the company or of a related or inter-related company, or to a related or inter-related company or corporation, or to a member of a related or inter-related corporation, or to a person related to any such company, corporation, director, prescribed officer or member, subject to subsections (3) and (4).
within 30 business days after the end of the financial year, in any other case.
the board of the company, by resolution, has acknowledged that it has applied the solvency and liquidity test, as set out in section 4, and reasonably concluded that the company will satisfy the solvency and liquidity test immediately after completing the proposed distribution.
despite any law, order or agreement to the contrary, the company must not proceed with or continue with any such distribution unless the board adopts a further resolution as contemplated in subsection (1)(c).
do not apply to any subsequent action of the company in satisfaction of that debt or obligation, except to the extent that the resolution, or the terms and conditions of the debt or obligation, provide otherwise.
ensures that the person to whom the company is required to make a payment in terms of the original order is paid at the earliest possible date compatible with the company satisfying its other financial obligations as they fall due and payable.
failed to vote against the distribution, despite knowing that the distribution was contrary to this section.
subject to subsection (2), when resolving to award a capitalisation share, the board may at the same time resolve to permit any shareholder entitled to receive such an award to elect instead to receive a cash payment, at a value determined by the board.
is satisfied that the company would satisfy the solvency and liquidity test immediately upon the completion of the distribution.
the redemption by the company of any redeemable securities in accordance with the terms and conditions of those securities.
convertible or redeemable shares.
ensures that the person to whom the company is required to make a payment in terms of the agreement is paid at the earliest possible date compatible with the company satisfying its other financial obligations as they fall due and payable.
the company to issue to that person an equivalent number of shares of the same class as those acquired.
failed to vote against the acquisition of shares, despite knowing that the acquisition was contrary to this section or section 46.
is subject to the requirements of sections 114 and 115 if, considered alone, or together with other transactions in an integrated series of transactions, it involves the acquisition by the company of more than 5% of the issued shares of any particular class of the companys shares.
In this Part, "certificated" means evidenced by a certificate, as contemplated in subsection (2)(a).
uncertificated, in which case the company must not issue certificates evidencing or purporting to evidence title to those securities, subject to subsection (6).
any provision of this Act applies with respect to any uncertificated securities in the same manner as it applies to certificated securities.
prevail in the case of a conflict between any provision of those sections and any other provision of this Act, any other law, the common law, the companys Memorandum of Incorporation or any agreement.
Any certificated securities may cease to be evidenced by certificates, and thereafter be uncertificated, in which case any provision of this Act contemplated in subsection (4) applies to those securities from the date on which they ceased to be evidenced by certificates.
for greater certainty, transfer of ownership in those securities cannot be effected by a participant or central securities depository while they remain in certificated form, unless they are held in certificated form in collective custody by the participant or central securities depository.
determined by the rules of the central securities depository.
A securities register, or an uncertificated securities register, maintained in accordance with this Act is sufficient proof of the facts recorded in it, in the absence of evidence to the contrary.
Unless all the shares of a company rank equally for all purposes, the companys shares, or each class of shares, and any other securities, must be distinguished by an appropriate numbering system.
is proof that the named security holder owns the securities, in the absence of evidence to the contrary.
A signature contemplated in subsection (1)(b) may be affixed to or placed on the certificate by autographic, mechanical or electronic means.
A certificate remains valid despite the subsequent departure from office of any person who signed it.
if the share has been transferred, the certificate must be endorsed with a reference number or similar device that will enable each preceding holder of the share in succession to be identified.
the value of any consideration still to be received by the company on each share or interest, in the case of a transfer of securities contemplated in section 40(5) and (6).
was effected by operation of law.
At the request of a company, and on payment of the prescribed fee, if any, a participant or central securities depository, as determined in accordance with the rules of the central securities depository, must furnish that company with all details of that companys uncertificated securities reflected in the uncertificated securities register.
in accordance with the rules of the central securities depository.
Within five business days after the date of a request for inspection, a company must produce a record of the uncertificated securities register, which record must reflect at least the details referred to in section 50(3)(b) at the close of business on the day on which the request for inspection was made.
may impose a charge or service fee for such a statement on the relevant company in accordance with the regulations.
in accordance with this section and the rules of the central securities depository.
crediting the account in the uncertificated securities register to which the transfer is effected, in accordance with the rules of a central securities depository.
The requirements of section 51(5), read with the changes required by the context, apply with respect to a transfer of uncertificated securities.
have resulted in the transfer being effected, but a transferee who was a party to or had knowledge of the fraud or illegality, or had knowledge of the insolvency, as the case may be, may not rely on this subsection.
A court may not order the name of a transferee contemplated in this section to be removed from an uncertificated securities register, unless that person was a party to or had knowledge of a fraud or illegality as contemplated in subsection (4).
Nothing in this section prejudices any power of a participant or central securities depository, as the case may be, to effect a transfer to a person to whom the right to any uncertificated securities of a company has been transmitted by operation of law.
remove the details of the uncertificated securities from the uncertificated securities register.
notify the central securities depository that the securities are no longer held in uncertificated form.
A company may charge a holder of its securities a reasonable fee to cover the actual costs of issuing a certificate, as contemplated in this section.
the description of any uncertificated securities is changed, is liable to any person who has suffered any direct loss or damage arising out of that action.
indemnify the company and the participant or central securities depository required to effect the transfer in accordance with the rules of the central securities depository, against any claim and against any direct loss or damage suffered by them arising out of such a transfer by virtue of an instruction referred to in this subsection.
any other person against any direct loss or damage arising out of a transfer of any uncertificated securities, if that transfer was effected by the participant or central securities depository without instruction, or in accordance with an instruction that was not sent and properly authenticated in terms of the rules of a central securities depository, or in a manner inconsistent with an instruction that was sent and properly authenticated in terms of the rules of a central securities depository.
Except to the extent that a companys Memorandum of Incorporation provides otherwise, the companys issued securities may be held by, and registered in the name of, one person for the beneficial interest of another person.
gives directions or instructions to a juristic person that has a beneficial interest in that security, and its directors or the trustees are accustomed to act in accordance with that persons directions or instructions.
the identity of each person with a beneficial interest in the securities so held, the number and class of securities held for each such person with a beneficial interest, and the extent of each such beneficial interest.
otherwise be provided on payment of a prescribed fee charged by the registered holder of securities.
disclose the identity of each person with a beneficial interest in the securities held by that person.
publish in its annual financial statements, if it is required to have such statements audited in terms of section 30(2), a list of the persons who hold beneficial interests equal to or in excess of 5 percent of the total number of securities of that class issued by the company, together with the extent of those beneficial interests.
Subsections (9) to (11) do not apply in respect of securities that are subject to the rules of a central securities depository.
the persons name is on the companys register of disclosures as the holder of a beneficial interest, or the person holds a proxy appointment in respect of that matter from the registered holder of those securities.
a proxy appointment to the extent of that persons beneficial interest, if the person so demands in terms of subsection (11).
A person who has a beneficial interest in any securities that are entitled to be voted on at a meeting of a companys shareholders, may demand a proxy appointment from the registered holder of those securities, to the extent of that persons beneficial interest, by delivering such a demand to the registered holder, in writing, or as required by the applicable requirements of a central securities depository.
[Heading of s. 57 substituted by s.
In this Part, "shareholder" has the meaning set out in section 1, but also includes a person who is entitled to exercise any voting rights in relation to a company, irrespective of the form, title or nature of the securities to which those voting rights are attached.
sections 59 to 65 do not apply to the governance of that company.
sections 71(3) to (7), 73 and 74 do not apply to the governance of that company.
when acting in their capacity as shareholders, those persons are not subject to the provisions of section 73 to 78 relating to the duties, obligations, liabilities and indemnification of directors.
A person authorised to act as a companys representative, as contemplated in subsection (5), may exercise the same powers as the authorising company could have exercised if it were an individual holder of securities.
For greater certainty, this section applies to the exercise of authority within a company in respect of any matter arising in terms of this Act or a companys Memorandum of Incorporation, irrespective of whether any such particular matter is expressly addressed in this Part.
give or withhold written consent on behalf of the shareholder to a decision contemplated in section 60.
any longer or shorter period expressly set out in the appointment, unless it is revoked in a manner contemplated in subsection (4)(c), or expires earlier as contemplated in subsection (8)(d).
a copy of the instrument appointing a proxy must be delivered to the company, or to any other person on behalf of the company, before the proxy exercises any rights of the shareholder at a shareholders meeting.
delivering a copy of the revocation instrument to the proxy, and to the company.
the date on which the revocation instrument was delivered as required in subsection (4)(c)(ii).
paid any reasonable fee charged by the company for doing so.
the proxy appointment remains valid only until the end of the meeting at which it was intended to be used, subject to subsection (5).
be allotted or exercise other rights.
must be published to the shareholders in a manner that satisfies any prescribed requirements.
the date of the action or event, in any other case, unless the Memorandum of Incorporation or rules of the company provide otherwise.
voted on in writing by shareholders entitled to exercise voting rights in relation to the resolution within 20 business days after the resolution was submitted to them.
if adopted, has the same effect as if it had been approved by voting at a meeting.
For greater certainty, any business of a company that is required by this Act or the companys Memorandum of Incorporation to be conducted at an annual general meeting of the company, may not be conducted in the manner contemplated in this section.
The board of a company, or any other person specified in the companys Memorandum of Incorporation or rules, may call a shareholders meeting at any time.
by the companys Memorandum of Incorporation.
in aggregate, demands for substantially the same purpose are made and signed by the holders, as of the earliest time specified in any of those demands, of at least 10% of the voting rights entitled to be exercised in relation to the matter proposed to be considered at the meeting.
A companys Memorandum of Incorporation may specify a lower percentage in substitution for that set out in subsection (3)(b).
the company must cancel the meeting if, as a result of one or more demands being withdrawn, the voting rights of any remaining shareholders continuing to demand the meeting, in aggregate, fall below the minimum percentage of voting rights required to call a meeting.
thereafter, once in every calendar year, but no more than 15 months after the date of the previous annual general meeting, or within an extended time allowed by the Companies Tribunal, on good cause shown.
any matters raised by shareholders, with or without advance notice to the company.
a shareholders meeting of the company may be held in the Republic or in any foreign country.
if no person has been authorised as contemplated in paragraph (a), the Companies Tribunal, on a request by any shareholder, may issue an administrative order for a shareholders meeting to be convened on a date, and subject to any terms, that the Tribunal considers appropriate in the circumstances.
within the time required by subsection (7), a shareholder may apply to a court for an order requiring the company to convene a meeting on a date, and subject to any terms, that the court considers appropriate in the circumstances.
A companys Memorandum of Incorporation may provide for longer or shorter minimum notice periods than required by subsection (1).
votes to waive the required minimum notice of the meeting.
section 63(1) requires that meeting participants provide satisfactory identification.
If there was a material defect in the giving of the notice of a shareholders meeting, the meeting may proceed, subject to subsection (5), only if every person who is entitled to exercise voting rights in respect of any item on the meeting agenda is present at the meeting and votes to approve the ratification of the defective notice.
the meeting may proceed to consider a severed matter, if the defective notice in respect of that matter has been ratified in terms of subsection (4)(d).
except to the extent set out in paragraph (b), is regarded as having waived any right based on an actual or alleged defect in the notice of the meeting.
the person presiding at the meeting must be reasonably satisfied that the right of that person to participate and vote, either as a shareholder, or as a proxy for a shareholder, has been reasonably verified.
one or more shareholders, or proxies for shareholders, to participate by electronic communication in all or part of a shareholders meeting that is being held in person, as long as the electronic communication employed ordinarily enables all persons participating in that meeting to communicate concurrently with each other without an intermediary, and to participate reasonably effectively in the meeting.
access to the medium or means of electronic communication is at the expense of the shareholder or proxy, except to the extent that the company determines otherwise.
At a meeting of shareholders, voting may either be by show of hands, or by polling.
If voting is by show of hands, any person who is present at the meeting, whether as a shareholder or as proxy for a shareholder and entitled to exercise voting rights has one vote, irrespective of the number of voting rights that person would otherwise be entitled to exercise.
If voting on a particular matter is by polling, any person who is present at the meeting, whether as a shareholder or as proxy for a shareholder, has the number of votes determined in accordance with the voting rights associated with the securities held by that shareholder.
a person who is, or persons who together are, entitled, as a shareholder or proxy representing a shareholder, to exercise at least 10% of the voting rights entitled to be voted on that matter.
a matter to be decided at the meeting may not begin to be considered unless sufficient persons are present at the meeting to exercise, in aggregate, at least 25 percent of all of the voting rights that are entitled to be exercised on that matter at the time the matter is called on the agenda.
A companys Memorandum of Incorporation may specify a lower or higher percentage in place of the 25 percent required in either or both of subsection (1)(a) or (b).
the requirements of subsection (1) or the Memorandum of Incorporation, if different, are satisfied.
if there is no other business on the agenda of the meeting, the meeting is adjourned for one week, without motion or vote.
one or more particular shareholders, having been delayed, have communicated an intention to attend the meeting, and those shareholders, together with others in attendance, would satisfy the requirements of subsection (1), or (3) if applicable.
the period of one week contemplated in subsection (4).
a location announced at the time of adjournment, in the case of an adjourned meeting.
if applicable, have not been satisfied, the shareholders, or in the case of a non-profit company, the members of the company present in person or by proxy will be deemed to constitute a quorum.
[Subs. 8 substituted by s.
Unless the companys Memorandum of Incorporation or rules provide otherwise, after a quorum has been established for a meeting, or for a matter to be considered at a meeting, the meeting may continue, or the matter may be considered, so long as at least one shareholder with voting rights entitled to be exercised at the meeting, or on that matter, is present at the meeting.
that are entitled to be exercised on at least one matter remaining on the agenda of the meeting, or on the matter under debate, as the case may be.
[Words following subpara. (ii) inserted as part of the substitution of subpara. (ii) by s.
requires that a further notice be given to shareholders only if the meeting determined that the adjournment was "until further notice", as contemplated in paragraph (a)(ii).
the date that is 60 business days after the date on which the adjournment occurred.
A companys Memorandum of Incorporation may provide for different maximum periods of adjournment of meetings than those set out in subsection (12), or for unlimited adjournment of meetings.
accompanied by sufficient information or explanatory material to enable a shareholder who is entitled to vote on the resolution to determine whether to participate in the meeting and to seek to influence the outcome of the vote on the resolution.
compensate the applicant for costs of the proceedings, if successful.
For an ordinary resolution to be approved by shareholders, it must be supported by more than 50 percent of the voting rights exercised on the resolution.
one or more higher percentages of voting rights to approve ordinary resolutions concerning one or more particular matters, respectively, provided that there must at all times be a margin of at least 10 percentage points between the highest established requirement for approval of an ordinary resolution on any matter, and the lowest established requirement for approval of a special resolution on any matter.
[Words following para. (b) substituted by s.
For a special resolution to be approved by shareholders, it must be supported by at least 75 percent of the voting rights exercised on the resolution.
provided that there must at all times be a margin of at least 10 percentage points between the highest established requirement for approval of an ordinary resolution on any matter, and the lowest established requirement for approval of a special resolution on any matter.
[Subs. (11) substituted by s.
A companys Memorandum of Incorporation may require a special resolution to approve any other matter not contemplated in subsection (11).
The business and affairs of a company must be managed by or under the direction of its board, which has the authority to exercise all of the powers and perform any of the functions of the company, except to the extent that this Act or the companys Memorandum of Incorporation provides otherwise.
in addition to the minimum number of directors that the company must have to satisfy any requirement, whether in terms of this Act or its Memorandum of Incorporation, to appoint an audit committee, or a social and ethics committee as contemplated in section 72(4).
[Words following para. (b) inserted as part of the substitution of para. (b) by s.
A companys Memorandum of Incorporation may specify a higher number in substitution for the minimum number of directors required by subsection (2).
in the case of a profit company other than a state-owned company, must provide for the election by shareholders of at least 50 percent of the directors, and 50 percent of any alternate directors.
duties, and is subject to all of the liabilities, of any other director of the company.
The election or appointment of a person as a director is a nullity if, at the time of the election or appointment, that person is ineligible or disqualified in terms of section 69.
has delivered to the company a written consent to serve as its director.
The Minister may make regulations designating any specific function or functions within a company to constitute a prescribed office for the purposes of this Act.
Any failure by a company at any time to have the minimum number of directors required by this Act or the companys Memorandum of Incorporation, does not limit or negate the authority of the board, or invalidate anything done by the board or the company.
Save as otherwise provided elsewhere in this Act or in the companys Memorandum of Incorporation, any particular director may be appointed to more than one committee of the company, and when calculating the minimum number of directors required for a company in terms of subsections (2) and (3), any such director who has been appointed to more than one committee must be counted only once.
[Subs. (12) inserted by s.
first elected in accordance with section 68 or the companys Memorandum of Incorporation.
If the number of incorporators of a company, together with any ex officio directors, or directors to be appointed as contemplated in section 66(4)(a)(i), is fewer than the minimum number of directors required for that company in terms of this Act or the companys Memorandum of Incorporation, the board must call a shareholders meeting within 40 business days after incorporation of the company for the purpose of electing sufficient directors to fill all vacancies on the board at the time of the election.
[Heading of s. 68 substituted by s.
Subject to subsection (3), each director of a profit company, other than the first director or a director contemplated in section 66(4)(a)(i) or (ii), must be elected by the persons entitled to exercise voting rights in such an election, to serve for an indefinite term, or for a term as set out in the Memorandum of Incorporation.
the vacancy is filled only if a majority of the voting rights exercised support the candidate.
Unless the Memorandum of Incorporation of a profit 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 election in terms of subsection (2), and during that 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.
[Subs. (3) substituted by s.
a person who is a member of a committee of a board of a company, or of the audit committee of a company, irrespective of whether or not the person is also a member of the companys board.
act as a director of a company.
A company must not knowingly permit an ineligible or disqualified person to serve or act as a director.
A person who becomes ineligible or disqualified while serving as a director of a company ceases to be entitled to continue to act as a director immediately, subject to section 70(2).
minimum qualifications to be met by directors of that company.
does not satisfy any qualification set out in the companys Memorandum of Incorporation.
at the end of one or more extensions, as determined by a court from time to time, on application by the Commission in terms of subsection (10).
the court may extend the disqualification for no more than five years at a time, if the court is satisfied that an extension is necessary to protect the public, having regard to the conduct of the disqualified person up to the time of the application.
a conviction for an offence referred in subsection (8)(b)(iv), send a copy of the relevant order or particulars of the conviction, as the case may be, to the Commission.
[Subs. (11A) inserted by s.
The Commission must notify each company which has as a director to whom the order or conviction relates, of the order or conviction.
[Subs. (11B) inserted by s.
[Subs. (12) deleted by s.
The Commission must establish and maintain in the prescribed manner a public register of persons who are disqualified from serving as a director, or who are subject to an order of probation as a director, in terms of an order of a court pursuant to this Act or any other law.
the granting of an order by the court on such an application, but the director is suspended from office during that time.
A person contemplated in subsection (4) may apply to a court for relief, and the court may grant a supervisory order relating to a meeting convened in terms of that paragraph if the court is satisfied that such an order is required to prevent the oppression, or preserve the rights, of any shareholder.
Every company must file a notice within 10 business days after a person becomes or ceases to be a director of the company.
Despite anything to the contrary in a companys Memorandum of Incorporation or rules, or any agreement between a company and a director, or between any shareholders and a director, a director may be removed by an ordinary resolution adopted at a shareholders meeting by the persons entitled to exercise voting rights in an election of that director, subject to subsection (2).
the director must be afforded a reasonable opportunity to make a presentation, in person or through a representative, to the meeting, before the resolution is put to a vote.
has neglected, or been derelict in the performance of, the functions of director, the board, other than the director concerned, must determine the matter by resolution, and may remove a director whom it has determined to be ineligible or disqualified, incapacitated, or negligent or derelict, as the case may be.
a reasonable opportunity to make a presentation, in person or through a representative, to the meeting before the resolution is put to a vote.
If, in terms of subsection (3), the board of a company has determined that a director is ineligible or disqualified, incapacitated, or has been negligent or derelict, as the case may be, the director concerned, or a person who appointed that director as contemplated in section 66(4)(a)(i), if applicable, may apply within 20 business days to a court to review the determination of the board.
remove the director from office, if the court is satisfied that the director is ineligible or disqualified, incapacitated, or has been negligent or derelict.
subsections (4), (5) and (6), each read with the changes required by the context, apply to the determination of the matter by the Companies Tribunal.
loss of any other office as a consequence of being removed as a director.
delegate to any committee any of the authority of the board.
has the full authority of the board in respect of a matter referred to it.
rules governing the composition and conduct of social and ethics committees.
it is not reasonably necessary in the public interest to require the company to have a social and ethics committee, having regard to the nature and extent of the activities of the company.
The Commission, on its own initiative or on request by a shareholder, or a person who was granted standing by the Tribunal at the hearing of the exemption application, may apply to the Tribunal to set aside an exemption only on the grounds that the basis on which the exemption was granted no longer applies.
be heard at any general shareholders meeting contemplated in this paragraph on any part of the business of the meeting that concerns the committees functions.
two directors, in any other case.
A companys Memorandum of Incorporation may specify a higher or lower percentage or number in substitution for those set out in subsection (1)(b).
one or more directors may participate in a meeting by electronic communication, so long as the electronic communication facility employed ordinarily enables all persons participating in that meeting to communicate concurrently with each other without an intermediary, and to participate effectively in the meeting.
no meeting of a board may be convened without notice to all of the directors, subject to subsection (5).
the matter being voted on fails, in any other case.
every resolution adopted by the board.
are effective as of the date of the resolution, unless the resolution states otherwise.
"related person", when used in reference to a director, has the meaning set out in section 1, but also includes a second company of which the director or a related person is also a director, or a close corporation of which the director or a related person is a member.
is the only director of that company.
as a director, determine any other matter in which the person or a related person has a personal financial interest, unless the agreement or determination is approved by an ordinary resolution of the shareholders after the director has disclosed the nature and extent of that interest to the shareholders.
At any time, a director may disclose any personal financial interest in advance, by delivering to the board, or shareholders in the case of a company contemplated in subsection (3), a notice in writing setting out the nature and extent of that interest, to be used generally for the purposes of this section until changed or withdrawn by further written notice from that director.
must not execute any document on behalf of the company in relation to the matter unless specifically requested or directed to do so by the board.
If a director of a company acquires a personal financial interest in an agreement or other matter in which the company has a material interest, or knows that a related person has acquired a personal financial interest in the matter, after the agreement or other matter has been approved by the company, the director must promptly disclose to the board, or to the shareholders in the case of a company contemplated in subsection (3), the nature and extent of that interest, and the material circumstances relating to the director or related persons acquisition of that interest.
[Subs. (8) substituted by s.
is bound not to disclose that information by a legal or ethical obligation of confidentiality.
having the general knowledge, skill and experience of that director.
any information, opinions, recommendations, reports or statements, including financial statements and other financial data, prepared or presented by any of the persons specified in subsection (5).
a committee of the board of which the director is not a member, unless the director has reason to believe that the actions of the committee do not merit confidence.
any provision of the companys Memorandum of Incorporation.
[Words following item (bb) substituted by s.
[Subpara. (iv) substituted by s.
[Subpara. (v) substituted by s.
an allotment by the company, despite knowing that the allotment was contrary to any provision of Chapter 4.
[Subpara. (viii) substituted by s.
the amount, if any, recovered by the company from persons to whom the distribution was made.
requiring the company to indemnify any director who has been or may be held liable in terms of this section, including indemnification for the costs of the proceedings under this subsection.
to restore to the company any amount improperly paid by the company as a consequence of the impugned act, and not recoverable in terms of this Act.
having regard to all the circumstances of the case, including those connected with the appointment of the director, it would be fair to excuse the director.
negate, limit or restrict any legal consequences arising from an act or omission that constitutes wilful misconduct or wilful breach of trust on the part of the director.
Subject to subsection (3A), a company may not directly or indirectly pay any fine that may be imposed on a director of the company, or on a director of a related company, as a consequence of that director having been convicted of an offence, unless the conviction was based on strict liability.
two or more related individuals are the only shareholders of that company, and there are no directors of the company other than one or more of those individuals.
[Subs. (3A) inserted by s.
arise in respect of any liability for which the company may indemnify the director, in terms of subsections (5) and (6).
any fine contemplated in subsection (3).
winding-up and liquidation by court order, as contemplated in section 81.
A resolution providing for the voluntary winding-up of a company must be filed, together with the prescribed notice and filing fee.
a certificate by the companys auditor, or if it does not have an auditor, a person who meets the requirements for appointment as an auditor, and appointed for the purpose, stating that to the best of the auditors knowledge and belief and according to the financial records of the company, the company appears to have no debts.
the creditors, in the case of a winding-up by creditors.
A voluntary winding-up of a company begins when the resolution of the company has been filed in terms of subsection (2).
When a resolution has been filed in terms of subsection (2), the Commission must promptly deliver a copy of it to the Master.
in the case of a winding-up by creditors, the liquidator or the creditors.
within the previous five years, enforcement procedures in terms of this Act or the Close Corporations Act, 1984 (Act No. 69 or 1984), were taken against the company, its directors or prescribed officers, or other persons in control of the company for substantially the same conduct, resulting in an administrative fine, or conviction for an offence.
the distribution of the estate of a former shareholder, and the present shareholder, and other or former shareholder, in aggregate, satisfied the requirements of paragraph (a).
one or more shareholders have applied to the court for a declaration in terms of section 162 to declare delinquent the directors, if any, responsible for the alleged misconduct, and the court is satisfied that the removal of those directors would bring the misconduct to an end.
the court has made an order applied for in terms of subsection (1)(c), (d), (e) or (f).
The Master must file a certificate of winding up of a company in the prescribed form when the affairs of the company have been completely wound up.
remove the companys name from the companies register.
has no assets or, because of the inadequacy of its assets, there is no reasonable probability of the company being liquidated.
the company has satisfied the prescribed requirements for doing so.
A company is dissolved as of the date its name is removed from the companies register unless the reason for the removal is that the companys registration has been transferred to a foreign jurisdiction, as contemplated in section 82(5).
The removal of a companys name from the companies register does not affect the liability of any former director or shareholder of the company or any other person in respect of any act or omission that took place before the company was removed from the register.
if the court declares the dissolution to have been void, any proceedings may be taken against the company as might have been taken if the company had not been dissolved.
otherwise, only to the extent that the companys Memorandum of Incorporation so requires, as contemplated in section 34(2).
[Subs. (2) deleted by s.
if there is a conflict between a provision of this Chapter and a provision of the Public Audit Act, 2004 (Act No.
despite the provisions of this Chapter to the contrary, the state-owned company is not required to appoint an auditor for any financial year in respect of which the Auditor-General has elected, in terms of the Public Audit Act, 2004 (Act No.
in any year in which the state-owned company is required by this Chapter to appoint an auditor, any requirement in terms of the Public Audit Act, 2004 (Act No. 25 of 2004), to have the appointment of the companys auditor approved by the Auditor-General applies to that company, in addition to the relevant provisions of this Chapter.
an audit committee, in the manner and for the purposes set out in Part D.
voluntarily, as contemplated in section 34(2).
assess a pro-rata share of the cost of convening the general meeting to each director of the company who knowingly permitted the company to fail to make the appointment in accordance with this Part.
A company that has been given notice contemplated in subsection (6)(a),or a director who has been assessed any portion of the costs of a meeting, as contemplated in subsection (6)(b), may apply to the Companies Tribunal to set aside the notice, or the assessment, in whole or in part.
any changes in the particulars referred to in paragraphs (a) and (b), as they occur, with the date and nature of each such change.
Within 10 business days after making an appointment contemplated in subsection (1), or after the termination of service of such an appointment, a company must file a notice of the appointment or termination, as the case may be, subject to subsection (4).
The incorporators of a company may file a notice of the appointment of the companys first company secretary, auditor or audit committee as part of the companys Notice of Incorporation.
A public company or state-owned company must appoint a company secretary.
be a permanent resident of the Republic, and remain so while serving in that capacity.
an ordinary resolution of the holders of the companys securities.
Within 60 business days after a vacancy arises in the office of company secretary, the board must fill the vacancy by appointing a person whom the directors consider to have the requisite knowledge and experience.
at least one employee of that juristic person, or one partner or employee of that partnership, as the case may be, satisfies the requirements contemplated in section 86.
any action taken by the juristic person or partnership in performance of its functions as company secretary is not invalidated merely because the juristic person or partnership had ceased to satisfy the requirements of subsection (1) at the time of that action.
A companys secretary is accountable to the companys board.
carrying out the functions of a person designated in terms of section 33(3).
less than one month written notice, with the approval of the board.
If the company secretary is removed from office by the board, the company secretary may require the company to include a statement in its annual financial statements relating to that financial year, not exceeding a reasonable length, setting out the company secretarys contention as to the circumstances that resulted in the removal.
If the company secretary wishes to exercise the power referred to in subsection (2), the company secretary must give written notice to that effect to the company by not later than the end of the financial year in which the removal took place and that notice must include the statement referred to in subsection (2).
The statement of the company secretary referred to in subsection (2) must be included in the directors report in the companys annual financial statements.
at the annual general meeting at which the requirement first applies to the company, and each annual general meeting thereafter.
[Subs. (1A) inserted by s.
must be acceptable to the companys audit committee as being independent of the company, having regard to the matters enumerated in section 94(8), in the case of a company that has appointed an audit committee, whether as required by section 94, or voluntarily as contemplated in section 34(2).
If a company appoints a firm as an auditor, the individual determined by that firm, in terms of section 44(1) of the Auditing Profession Act, to be responsible for performing the functions of auditor must satisfy the requirements of subsection (2).
If a company that is required to appoint an auditor does not do so when it registers the incorporation of the company, the directors of the company must appoint the first auditor of the company within 40 business days after the date of incorporation of the company.
The first auditor of a company holds office until the conclusion of the first annual general meeting of the company.
the company has notice of an intended resolution to appoint some other person or persons in place of the retiring auditor.
If an annual general meeting of a company does not appoint or reappoint an auditor the directors must fill the vacancy in the office in terms of the procedure contemplated in section 91 within 40 business days after the date of the meeting.
The resignation of an auditor is effective when the notice is filed.
may appoint a new auditor at any time, if there was more than one incumbent, but while any such vacancy continues, the surviving or continuing auditor may act as auditor of the company.
may proceed to make an appointment of a person proposed in terms of paragraph (a) if, within five business days after delivering the proposal, the audit committee does not give notice in writing to the board rejecting the proposed auditor.
If a company appoints a firm as its auditor, any change in the composition of the members of that firm does not by itself create a vacancy in the office of auditor for that year, subject to subsection (5).
If, by comparison with the membership of a firm at the time of its latest appointment, less than one half of the members remain after a change contemplated in subsection (4), that change constitutes the resignation of the firm as auditor of the company, giving rise to a vacancy.
Section 89, read with the changes required by the context, applies with respect to an auditor of a company, hut a reference in that section to "company secretary" must be regarded as referring to the companys auditor.
The same individual may not serve as the auditor or designated auditor of a company for more than five consecutive financial years.
If an individual has served as the auditor or designated auditor of a company for two or more consecutive financial years and then ceases to be the auditor or designated auditor, the individual may not be appointed again as the auditor or designated auditor of that company until after the expiry of at least two further financial years.
be heard at any general shareholders meeting contemplated in this paragraph on any part of the business of the meeting that concerns the auditors duties or functions.
make an order of costs personally against any director or prescribed officer whom the court has found to have wilfully and knowingly frustrated, or attempted to frustrate, the performance of the auditors functions.
as may be determined by the companys audit committee in terms of section 94(7)(d).
does not apply to a company that has been granted an exemption in terms of section 64(4) of the Banks Act.
the audit committee of that other company will perform the functions required under this section on behalf of that subsidiary company.
by the board, within 40 business days after the incorporation of the company.
not be related to any person who falls within any of the criteria set out in paragraph (b).
The Minister may prescribe minimum qualification requirements for members of an audit committee as necessary to ensure that any such committee, taken as a whole, comprises persons with adequate relevant knowledge and experience to equip the committee to perform its functions.
The board of a company contemplated in section 84(1) must appoint a person to fill any vacancy on the audit committee within 40 business days after the vacancy arises.
to perform such other oversight functions as may be determined by the board.
[Para. (i) substituted by s.
consider compliance with other criteria relating to independence or conflict of interest as prescribed by the Independent Regulatory Board for Auditors established by the Auditing Profession Act, in relation to the company, and if the company is a member of a group of companies, any other company within that group.
Nothing in this section precludes the appointment by a company at its annual general meeting of an auditor other than one nominated by the audit committee, but if such an auditor is appointed, the appointment is valid only if the audit committee is satisfied that the proposed auditor is independent of the company.
with which the first company proposes to be amalgamated or to merge.
"untrue statement" includes a statement that is misleading in the form and context in which it is made, subject to subsections (3) and (4).
that is incorporated by reference within, or is attached to or accompanies, the prospectus, written statement or summary.
purports to affect an applicant for securities with any notice of any agreement, document or matter not specifically referred to in a prospectus or written statement.
in respect of related or ancillary matters concerning the offering of company securities.
the Public Investment Corporation as defined in the Public Investment Corporation Act, 2004 (Act No.
an authorised financial services provider, as defined in the Financial Advisory and Intermediary Services Act, 2002 (Act No.
a financial institution, as defined in the Financial Services Board Act, 1990 (Act No.
no similar offer, or offer in a series of offers, has been made by the company within the period prescribed in terms of subsection (2)(b) immediately before the offer, or first of a series of offers, as the case may be.
a minimum period for the purposes of subsection (1)(g)(v), which must not be less than six months.
the compliance officer has complied with the requirements of subsection (2).
is subject to every provision of this Act relating to the making of a prospectus.
is subject to sections 102 to 111, read with the changes required by the context.
that does not satisfy all of the requirements set out in subsection (2)(a) and (b) will, despite any statement to the contrary contained in the advertisement, be regarded as having been intended to be a prospectus issued by the person responsible for publishing or disseminating the advertisement, and is subject to every provision of this Act relating to such a prospectus.
in the case of a foreign company, a copy of its Memorandum of Incorporation or comparable governing document, and a list of the names and addresses of its directors, has been filed within 90 business days before the offer to the public is made.
secondary offer to the public of any securities of a company, unless the offer satisfies the requirements of section 101.
approved by the relevant exchange, in the case of listed securities.
bears on the face of it the date on which the prospectus in respect of those securities was filed.
in relation to securities that were not offered to the public.
subject to any conditions attached to the approval contemplated in paragraph (a).
A prospectus may not be registered unless the requirements of this Act have been complied with and it has been filed for registration, together with any prescribed documents, within 10 business days after the date of that prospectus.
As soon as the Commission has registered a prospectus, it must send notice of the registration to the person who filed the prospectus for registration.
adhere to the prescribed specifications.
in the case of an unwritten agreement, a memorandum giving full particulars of the agreement.
If any part of an agreement contemplated in subsection (4) is in a language that is not an official language, a certified translation, in an official language, of that part must be attached to the agreement.
A prospectus containing a statement to the effect that the whole or any portion of the issue of the securities offered to the public has been or is being underwritten may not be registered until a copy of the underwriting agreement has been filed, together with a sworn declaration stating that to the best of the deponents knowledge and belief the underwriter is and will be in a position to carry out the obligations contemplated in the agreement even if no shares are being applied for.
If an offer is made in respect of which no prospectus is required by this Act, the copy of the agreement and sworn declaration referred to in subsection (6) must be filed not later than the date of the proposed offer of shares.
that users will not be unduly prejudiced by the omission.
report on any change of a matter included in the prospectus, provided these are relevant or material in terms of this Chapter.
to reverse any transaction, or restore any consideration paid or benefit received by any person in terms of the offer and subscription.
in respect of which an exchange has granted permission to deal.
a written statement that satisfies the requirements of subsections (4) to (6).
by a person acting in the capacity of an executor or administrator of a deceased estate or a trustee of an insolvent estate or a liquidator or trustee referred to in the Administration of Estates Act, 1965 (Act No.
for the purpose of a sale in execution or by public auction or by public tender.
not issue, distribute or publish the statement more than three months after the date on which it is registered.
if that person is a company, by every director of the company.
[Subpara. (vii) substituted by s.
if any securities were issued by the company as partly paid-up shares under the Companies Act, 1973 (Act No.
the date of registration of the written statement by the Commission.
In subsection (6), the expression company refers to the company that issued the relevant securities.
the use of that persons name in the prospectus.
Subject to subsection (2), within one year after the date of filing a prospectus, a company must not vary or agree to vary any material terms of an agreement referred to in the prospectus, other than in the ordinary course of business.
the specific terms of the variation are authorised or ratified by an ordinary resolution adopted at a general shareholders meeting.
made that offer to the public, is liable to compensate any person who acquired securities on the faith of the prospectus for any loss or damage the person may have sustained as a result of any untrue statement in the prospectus, or in any report or memorandum appearing on the face of, issued with, or incorporated by reference in, the prospectus.
after the issue of the prospectus and before allotment or acceptance thereunder, that person, on becoming aware of any untrue statement in it, withdrew any consent to the prospectus and gave reasonable public notice of the withdrawal and of the reason for it.
any other person who issued the prospectus or authorised the issue of it, is liable, together with the directors, to indemnify any person incorrectly named as a director against any damage, cost or expense arising as a result of that person having been so named in the prospectus, or incurred in defending against any action or legal proceedings brought in respect of having been so named in the prospectus.
has withdrawn it before the issue of the prospectus.
having become a director between the issue of the prospectus and the holding of the first general shareholders meeting at which directors are elected or appointed, has satisfied any liability under this section by making a payment to another person, may recover a contribution, as in cases of contract, from any other person, who, if sued separately, would have been liable to make the same payment, unless the person who has satisfied such liability was, and that other person was not, guilty of fraudulent misrepresentation.
to indemnify any person against liability under section 104(6).
had reasonable ground to believe and did up to the time of the allotment of the securities or the acceptance of the offer, as the case may be, believe that the statement was true.
the expert has consented to the inclusion of the statement in the prospectus in the form and context in which it appears, the expert person is solely responsible for that statement, subject to the provisions of subsection (3).
liability for the untrue statement does not attach to that person for any reason set out in section 104(3).
A company that has offered securities to the public must not allot any of those securities or accept any subscription for any of those securities, more than four months after filing the prospectus for that offer.
it is shown that the applicant, at the time of the application, was in fact in possession of a copy of the prospectus or was aware of its contents.
any amount paid to and received by the company must be reduced by the amount of any money, bill, promissory note or cheque that it has at any time delivered to the payer otherwise than in discharge of a debt bona fide due by the company.
not be used or made available for the purposes of the company or for the satisfaction of its debts.
If any money required to be repaid to an applicant in terms of subsection (6) has not been repaid within 55 business days after the issue of the prospectus, each director or prescribed officer of the company is jointly and severally liable, with all other such directors and prescribed officers of the company, to repay that money with interest, in accordance with the Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975), from the expiration of the 55th business day, unless the default in payment was not due to any misconduct or negligence on the part of that director or prescribed officer.
every director of the company concerned and, if the offeror is a company, every director of that company, is liable to the extent set out in section 77(3)(e)(vii), if the allotment or acceptance is declared void under paragraph (a).
three years after the date of the relevant allotment or acceptance.
No allotment of securities or acceptance of an offer in respect of securities of a company may be made in pursuance of a prospectus, and no proceedings may be taken on applications made in pursuance of a prospectus, until the beginning of the third day after that on which the prospectus is first issued or such later time, if any, specified in the prospectus.
if it is not issued as a newspaper advertisement before the third day after the day on which it is first issued in any other manner, is a reference to the day on which it is first issued in that other manner.
the prospectus names the particular exchange to which the application has been made.
an appeal against a refusal of such an application is upheld.
a wholly-owned subsidiary of a holding company, on the one hand, and its holding company and one or more wholly-owned subsidiaries of that holding company, on the other hand.
the company has satisfied all other requirements set out in section 115, to the extent those requirements are applicable to such a disposal by that company.
the provisions of sections 115 and 164, in a manner that satisfies the prescribed standards.
Any part of the undertaking or assets of a company to be disposed of, as contemplated in this section, must be fairly valued, as calculated in the prescribed manner, as at the date of the proposal, which date must be determined in the prescribed manner.
Two or more profit companies, including holding and subsidiary companies, may amalgamate or merge if, upon implementation of the amalgamation or merger, each amalgamated or merged company will satisfy the solvency and liquidity test.
the estimated cost of the proposed amalgamation or merger.
if the board reasonably believes that each proposed amalgamated or merged company will satisfy the solvency and liquidity test, it may submit the agreement for consideration at a shareholders meeting of that amalgamating or merging company, in accordance with section 115.
the provisions of sections 115 and 164 in a manner that satisfies prescribed standards.
The requirements of subsections (4) and (5) do not apply to a company engaged in business rescue proceedings, in respect of any transaction that is pursuant to or contemplated in the companys business rescue plan that has been adopted in accordance with Chapter 6.
a combination of the methods contemplated in this subsection.
able to express opinions, exercise judgment and make decisions impartially.
[Para. (e) substituted by s.
include a copy of sections 115 and 164.
Section 48 applies to a proposed arrangement contemplated in this section to the extent that the arrangement would result in any re-acquisition by a company of any of its previously issued securities.
implement a scheme of arrangement, the Panel has issued a compliance certificate in respect of the transaction, in terms of section 119(4)(b), or exempted the transaction in terms of section 119(6).
[Subpara. (iii) substituted by s.
by the court, to the extent required in the circumstances and manner contemplated in subsections (3) to (6).
the court, on an application within 10 business days after the vote by any person who voted against the resolution, grants that person leave, in terms of subsection (6), to apply to a court for a review of the transaction in accordance with subsection (7).
required to be voted in support of a resolution, or actually voted in support of the resolution.
In subsection (4), "act in concert" has the meaning set out in section 117(1)(b).
[Subs. (4A) inserted by s.
treat the resolution as a nullity.
has alleged facts which, if proved, would support an order in terms of subsection (7).
the vote was materially tainted by conflict of interest, inadequate disclosure, failure to comply with the Act, the Memorandum of Incorporation or any applicable rules of the company, or other significant and material procedural irregularity.
was present at the meeting and voted against that special resolution.
any other relief that may be necessary or appropriate to give effect to, and properly implement, the amalgamation or merger.
Subsection (1) does not apply to a company engaged in business rescue proceedings, in respect of any transaction pursuant to or contemplated in the companys business rescue plan adopted in accordance with Chapter 6.
subject to the order of the court.
deregister any of the amalgamating or merging companies that did not survive the amalgamation or merger.
conviction against, or ruling, order or judgment in favour of or against, an amalgamating or merging company, and any such ruling, order or judgment may be enforced by or against any amalgamated or merged, company.
each newly amalgamated, or surviving merged company is liable for all of the obligations of every amalgamating or merging company, in accordance with the provisions of the amalgamation or merger agreement, or any other relevant agreement, but in any case subject to the requirement that each amalgamated or merged company must satisfy the solvency and liquidity test, and subject to subsection (8), if it is applicable.
If, as a consequence of an amalgamation or merger, any property that is registered in terms of any public regulation is to be transferred from an amalgamating or merging company to an amalgamated or merged company, a copy of the amalgamation or merger agreement, together with a copy of the filed notice of amalgamation or merger, constitutes sufficient evidence for the keeper of the relevant property registry to effect a transfer of the registration of that property.
If, with respect to a transaction involving a company that is regulated in terms of the Banks Act, there is a conflict between a provision of subsection (7) and a provision of section 54 of that Act, the provisions of that Act prevail.
is convertible to a instrument that satisfies the criteria set out in subparagraph (i).
the Memorandum of Incorporation of that company expressly provides that the company and its securities are subject to this Part, Part C and the Takeover Regulations, irrespective of whether the company falls within the criteria set out in subparagraph (i).
The Minister, after consulting the Panel, may prescribe a minimum percentage, being not less than 10 percent, of the issued securities of a private company which, if transferred within a 24-month period as contemplated in subsection (1)(c)(i), would bring that company and its securities within the application of this Part, Part C, and the Takeover Regulations in terms of that subsection.
a scheme of arrangement proposed by a regulated company, to the extent that any such affected transaction is pursuant to or contemplated in an approved business rescue plan in terms of Chapter 6.
to the extent that it is impossible to apply or comply with one of the inconsistent provisions without contravening the second, the provisions of the other public regulation prevail.
prevent actions by a regulated company designed to impede, frustrate, or defeat an offer, or the making of fair and informed decisions by the holders of that companys securities.
are provided sufficient information, and permitted sufficient time, to enable them to reach a properly informed decision.
[Pra. (b) substituted by s.
initiate or receive complaints, conduct investigations, and issue compliance notices, with respect to any affected transaction or offer, in accordance with Chapter 7, and the Takeover Regulations.
account for profits.
doing so is otherwise reasonable and justifiable in the circumstances having regard to the principles and purposes of this Part, Part C and the Takeover Regulations.
any other matters relating to the powers and functions of the Panel.
granted an exemption for that transaction.
disposes of a beneficial interest in sufficient securities of a class issued by a company such that, as a result of the disposition, the person no longer holds a beneficial interest in securities amounting to a particular multiple of 5 percent of the issued securities of that class.
person who has acted in concert with any other person.
report the information to the holders of the relevant class of securities unless the notice concerned a disposition of less than 1 percent of the class of securities.
In this section, "prescribed percentage" means the percentage prescribed by the Minister in terms of subsection (5).
as a result of that acquisition, together with any other securities of the company already held by the person or persons contemplated in paragraph (a)(ii), they are able to exercise at least the prescribed percentage of all the voting rights attached to securities of that company.
offering to acquire any remaining such securities on terms determined in accordance with this Act and the Takeover Regulations.
For the purposes contemplated in this section, the Minister, on the advice of the Panel, may prescribe a percentage of not more than 35 percent of the voting securities of a company.
subject to subsection (2), after giving notice in terms of paragraph (a), the offeror is entitled, and bound, to acquire the securities concerned on the same terms that applied to securities whose holders accepted the original offer.
imposing conditions of acquisition different from those of the original offer.
the court is satisfied that it is just and equitable to make the order, having regard, in particular, to the number of holders of securities who have been traced but who have not accepted the offer.
after receiving a demand in terms of paragraph (b), the offeror is entitled, and bound, to acquire the securities concerned on the same terms that applied to securities whose holders accepted the original offer.
subject to the payment of prescribed fees or duties, the company must thereupon register the offeror as the holder of those securities.
An instrument of transfer contemplated in subsection (5) is not required for any securities for which a share warrant is for the time being outstanding.
[Subs. (6) substituted by s.
paid on demand to the person contemplated in paragraph (a), with interest to the date of payment.
If a person contemplated in subsection (7)(a) fails for more than three years to demand payment of an amount held in terms of that paragraph, the amount, together with any accumulated interest, must be paid to the benefit of the Guardians Fund of the Master of the High Court, to be held and dealt with in accordance with the rules of that Fund.
In this section any reference to a holder of securities who has not accepted the offer includes any holder who has failed or refused to transfer their securities to the offeror in accordance with the offer.
"prescribed percentage" means the percentage prescribed in terms of section 123(5).
a person acting alone, or two or more persons acting in concert, make an offer for any securities of a regulated company that has more than one class of issued securities, which, if accepted, could result in a person, or a number of related or inter-related persons holding securities of the company entitling the person or persons to exercise more than the prescribed percentage of the general voting rights associated with all issued securities of the company, that person or those persons acting in concert must make a comparable offer to acquire securities of each class of issued securities of that company.
An offer that is conditional, as contemplated in subsection (3)(b), may not be declared to be unconditional as to acceptances unless it has been accepted to the extent specified in terms of subsection (3)(b)(i).
any securities tendered in excess of the relevant percentage must be accepted by the offeror from each holder of securities in the same proportion to the number tendered as will enable the offeror to obtain the total number of shares for which it has offered.
make a distribution that is abnormal as to timing and amount, without the prior written approval of the Panel, and the approval of the holders of relevant securities, or in terms of a pre-existing obligation or agreement entered into before the time contemplated in this subsection.
enter into arrangements which involve acceptance of an offer, if there are favourable conditions attached that are not being extended to all holders of the relevant securities.
acquire any securities in the offeree company after giving the notice contemplated in paragraph (a)(ii).
acquire any securities of the offeree company, if as a result of that acquisition, either the offeror or that person would be required to make a mandatory offer in terms of section 123.
any person who is subsequently acting in concert with a person contemplated in paragraph (a) or (b), must not make a second offer to any holder of securities of the target company, or acquire any interest in any such securities, on more favourable terms than those made under the original offer.
[Heading of Part renamed to Part A by s.
"voting interest" means an interest as recognised, appraised and valued in terms of section 145(4) to (6).
For the purpose of subsection (1)(g), an employee of a company is not related to that company solely as a result of being a member of a trade union that holds securities of that company.
there appears to be a reasonable prospect of rescuing the company.
has no force or effect until it has been filed.
appoint a business rescue practitioner who satisfies the requirements of section 138, and who has consented in writing to accept the appointment.
publish a copy of the notice of appointment to each affected person within five business days after the notice was filed.
the company may not file a further resolution contemplated in subsection (1) for a period of three months after the date on which the lapsed resolution was adopted, unless a court, on good cause shown on an ex parte application, approves the company filing a further resolution.
If the board of a company has reasonable grounds to believe that the company is financially distressed, but the board has not adopted a resolution contemplated in this section, the board must deliver a written notice to each affected person, setting out the criteria referred to in section 128(1)(f) that are applicable to the company, and its reasons for not adopting a resolution contemplated in this section.
requiring the practitioner to provide security in an amount and on terms and conditions that the court considers necessary to secure the interests of the company and any affected persons.
subsection (1)(b) to set aside the appointment of the practitioner appointed by the company, unless that person satisfies the court that the person, in supporting the resolution, acted in good faith on the basis of information that has subsequently been found to be false or misleading.
notify each affected person of the application in the prescribed manner.
if the court has found that there were no reasonable grounds for believing that the company would be unlikely to pay all of its debts as they became due and payable, an order of costs against any director who voted in favour of the resolution to commence business rescue proceedings, unless the court is satisfied that the director acted in good faith and on the basis of information that the director was entitled to rely upon in terms of section 76(4) and (5).
the provisions of subsection (5)(b), if relevant, apply to the practitioner appointed in terms of paragraph (a).
dismissing the application, together with any further necessary and appropriate order, including an order placing the company under liquidation.
If the court makes an order in terms of subsection (4)(a), the court may make a further order appointing as interim practitioner a person who satisfies the requirements of section 138, and who has been nominated by the affected person who applied in terms of subsection (1), subject to ratification by the holders of a majority of the independent creditors voting interests at the first meeting of creditors, as contemplated in section 147.
the business rescue proceedings end, if the court makes the order applied for.
must notify each affected person of the order within five business days after the date of the order.
a court makes an order placing a company under supervision during the course of liquidation proceedings, or proceedings to enforce a security interest, as contemplated in section 131(7).
adopted in terms of Part D of this Chapter, and the practitioner has subsequently filed a notice of substantial implementation of that plan.
proceedings by a regulatory authority in the execution of its duties after written notification to the business rescue practitioner.
[Para. (f) inserted by s.
If any right to commence proceedings or otherwise assert a claim against a company is subject to a time limit, the measurement of that time must be suspended during the companys business rescue proceedings.
despite any provision of an agreement to the contrary, no person may exercise any right in respect of any property in the lawful possession of the company, irrespective of whether the property is owned by the company, except to the extent that the practitioner consents in writing.
[Subs. numbered as subs. (1) by s.
the nature of the property, and the rights claimed in respect of it.
provide security for the amount of those proceeds, to the reasonable satisfaction of that other person.
will be paid in the order of preference set out in subsection (3)(a).
will be paid in the order of preference set out in subsection (3)(b).
in subsection (2) will have preference in the order in which they were incurred over all unsecured claims against the company.
[Words preceding para. (ii) amended by s.
any retrenchment of any such employees contemplated in the companys business rescue plan is subject to section 189 and 189A of the Labour Relations Act, 1995 (Act No. 66 of 1995), and other applicable employment related legislation.
apply urgently to a court to entirely, partially or conditionally cancel, on any terms that are just and reasonable in the circumstances, any obligation of the company contemplated in paragraph (a).
an agreement to which section 35A or 35B of the Insolvency Act, 1936 (Act No.
contemplated in an approved business rescue plan.
to the extent that the director acts in accordance with paragraphs (b) and (c), is relieved from the duties of a director as set out in section 76, and the liabilities set out in section 77, other than section 77(3)(a), (b) and (c).
During a companys business rescue proceedings, each director of the company must attend to the requests of the practitioner at all times, and provide the practitioner with any information about the companys affairs as may reasonably be required.
If, during a companys business rescue proceedings, the board, or one or more directors of the company, purports to take any action on behalf of the company that requires the approval of the practitioner, that action is void unless approved by the practitioner.
is not related to a person who has a relationship contemplated in paragraph (d).
For the purposes of subsection (1)(a)(ii), the Commission may license any qualified person to practice in terms of this Chapter and may suspend or withdraw any such licence in the prescribed manner.
minimum qualifications for a person to practice as a business rescue practitioner, including different minimum qualifications for different categories of companies.
[S. 138 substituted by s.
as provided for in this section.
[Para. (2) substituted by s.
the practitioner is incapacitated and unable to perform the functions of that office, and is unlikely to regain that capacity within a reasonable time.
implement any business rescue plan that has been adopted in accordance with Part D of this Chapter.
The practitioner must, as soon as practicable after appointment, inform all relevant regulatory authorities having authority in respect of the activities of the company, of the fact that the company has been placed under business rescue proceedings and of his or her appointment.
is related to a person who has a relationship contemplated in paragraph (a).
may be held liable in accordance with any relevant law for the consequences of any act or omission amounting to gross negligence in the exercise of the powers and performance of the functions of practitioner.
As soon as practicable after being appointed, a practitioner must investigate the companys affairs, business, property, and financial situation, and after having done so, consider whether there is any reasonable prospect of the company being rescued.
voidable transactions, or the failure by the company or any director to perform any material obligation relating to the company, the practitioner must take any necessary steps to rectify the matter and may direct the management to take appropriate steps.
As soon as practicable after business rescue proceedings begin, each director of a company must deliver to the practitioner all books and records that relate to the affairs of the company and are in the directors possession.
any creditors and their rights or claims against the company.
No person is entitled, as against the practitioner of a company, to retain possession of any books or records of the company, or to claim or enforce a lien over any such books or records, unless such books or records are in the lawful possession of such person and he or she has made copies available to the practitioner or has afforded the practitioner a reasonable opportunity to inspect the books or records concerned..
the attainment of any particular result or combination of results relating to the business rescue proceedings.
the holders of a majority of the voting rights attached to any shares of the company that entitle the shareholder to a portion of the residual value of the company on winding-up, present and voting at a meeting called for the purpose of considering the proposed agreement.
the remuneration provided for in the agreement is unreasonable having regard to the financial circumstances of the company.
To the extent that the practitioners remuneration and expenses are not fully paid, the practitioners claim for those amounts will rank in priority before the claims of all other secured and unsecured creditors.
not represented by a registered trade union may elect to exercise any rights set out in this Chapter either directly, or by proxy through an employee organisation or representative.
To the extent that any remuneration, reimbursement for expenses or other amount of money relating to employment became due and payable by a company to an employee at any time before the beginning of the companys business rescue proceedings, and had not been paid to that employee immediately before the beginning of those proceedings, the employee is a preferred unsecured creditor of the company for the purposes of this Chapter.
present an offer to acquire the interests of one or more affected persons, in the manner contemplated in section 153.
in the case of a defined benefit pension scheme, the present value at the commencement of the business rescue proceedings of any unfunded liability under that scheme.
informally participate in those proceedings by making proposals for a business rescue plan to the practitioner.
present an offer to acquire the interests of any or all of the other creditors in the manner contemplated in section 153.
The creditors of a company are entitled to form a creditors committee, and through that committee are entitled to be consulted by the practitioner during the development of the business rescue plan.
a concurrent creditor who would be subordinated in a liquidation has a voting interest, as independently and expertly appraised and valued at the request of the practitioner, equal to the amount, if any, that the creditor could reasonably expect to receive in such a liquidation of the company.
give a written notice of the determination, or appraisal and valuation, to the person concerned at least 15 business days before the date of the meeting to be convened in terms of section 151.
review, re-appraise and re-value that persons voting interest, as determined in terms of subsection (5)(b).
present an offer to acquire the interests of any or all of the creditors or other holders of the companys securities in the manner contemplated in section 153.
the creditors may determine whether or not a committee of creditors should be appointed and, if so, may appoint the members of the committee.
agenda for the meeting.
At any meeting of creditors, other than the meeting contemplated in section 151, a decision supported by the holders of a simple majority of the independent creditors voting interests voted on a matter, is the decision of the meeting on that matter.
the employees representatives may determine whether or not an employees committee should be appointed and, if so, may appoint the members of the committee.
must act independently of the practitioner to ensure fair and unbiased representation of creditors or employees interests.
authorised in writing by an independent creditor or employee to be a member.
a statement whether the business rescue plan includes a proposal made informally by a creditor of the company.
the effect that the business rescue plan will have on the holders of each class of the companys issued securities.
statement of income and expenses for the ensuing three years, prepared on the assumption that the proposed business plan is adopted.
the holders of a majority of the creditors voting interests.
Within 10 business days after publishing a business rescue plan in terms of section 150, the practitioner must convene and preside over a meeting of creditors and any other holders of a voting interest, called for the purpose of considering the plan.
a summary of the rights of affected persons to participate in and vote at the meeting.
The meeting contemplated in this section may be adjourned from time to time, as necessary or expedient, until a decision regarding the companys future has been taken in accordance with sections 152 and 153.
call for a vote for preliminary approval of the proposed plan, as amended if applicable, unless the meeting has first been adjourned in accordance with paragraph (d)(ii).
the votes in support of the proposed plan included at least 50 percent of the independent creditors voting interests, if any, that were voted.
oppose adoption of the plan, the plan is rejected, and may be considered further only in terms of section 153.
in the case of creditors, had proven their claims against the company.
implement the plan as adopted.
if the business rescue plan was approved by the shareholders of the company, as contemplated in subsection (3)(c), the practitioner may amend the companys Memorandum of Incorporation to authorise, and determine the preferences, rights, limitations and other terms of, any securities that are not otherwise authorised, but are contemplated to be issued in terms of the business rescue plan, despite any provision of section 16, 36 or 37 to the contrary.
When the business rescue plan has been substantially implemented, the practitioner must file a notice of the substantial implementation of the business rescue plan.
advise the meeting that the company will apply to a court to set aside the result of the vote by the holders of voting interests or shareholders, as the case may be, on the grounds that it was inappropriate.
until the court has disposed of the contemplated application.
the provisions of this Part apply afresh to the publishing and consideration of that new or revised plan.
set a date for resumption of the meeting, without further notice, at which the provisions of section 152 and this section will apply afresh.
If no person takes any action contemplated in subsection (1), the practitioner must promptly file a notice of the termination of the business rescue proceedings.
a fair and reasonable estimate of the return to that person, or those persons, if the company were to be liquidated.
This section applies to a company, irrespective of whether or not it is financially distressed as defined in section 128(1)(f), unless it is engaged in business rescue proceedings in terms of this Chapter.
the benefits of adopting the proposal as opposed to the benefits that would be received by creditors if the company were to be placed in liquidation.
statement of income and expenses for the ensuing three years, prepared on the assumption that the proposal is accepted.
A proposal contemplated in this section will have been adopted by the creditors of the company, or the members of a relevant class of creditors, if it is supported by a majority in number, representing at least 75 percent in value of the creditors or class, as the case may be, present and voting in person or by proxy, at a meeting called for that purpose.
in the case of a compromise in respect of a company being wound up, the report of the Master required in terms of the laws contemplated in item 9 of Schedule 5.
is final and binding on all of the companys creditors or all of members of the relevant class of creditors, as the case may be, as of the date on which it is filed.
the Commission in respect of any matter arising in terms of this Act, other than a matter contemplated in subparagraph (i).
acting in the public interest, with leave of the court.
apply for leave to intervene in any court proceedings arising in terms of this Act, in order to represent any interest that would not otherwise be adequately represented in those proceedings.
in the manner set out in section 165.
if any provision of this Act, or other document in terms of this Act, read in its context, can be reasonably construed to have more than one meaning, must prefer the meaning that best promotes the spirit and purpose of this Act, and will best improve the realisation and enjoyment of rights.
To the extent that this section creates any right of, or establishes any protection for, an employee, as defined in the Protected Disclosures Act, 2000 (Act No.
that Act applies to a disclosure contemplated in this section by an employee, as defined in that Act, irrespective of whether that Act would otherwise apply to that disclosure.
Any provision of a companys Memorandum of Incorporation or rules, or an agreement, is void to the extent that it is inconsistent with, or purports to limit, set aside or negate the effect of this section.
Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No.
contravened any other legislation in a manner that could expose the company to an actual or contingent risk of liability, or is inherently prejudicial to the interests of the company.
is immune from any civil, criminal or administrative liability for that disclosure.
is reckless as to causing the first person to fear that the threat will be carried out, irrespective of whether the first person actually fears or feared that the threat will or would be carried out.
routinely publicise the availability of that system to the categories of persons contemplated in subsection (4).
A person to whom a notice is delivered in terms of this Act with respect to an application for reservation of a name, registration of a defensive name, application to transfer the reservation of a name or the registration of a defensive name, or the registration of a companys name, or any other person with an interest in the name of a company, may apply to the Companies Tribunal in the prescribed manner and form for a determination whether the name, or the reservation, registration or use of the name, or the transfer of any such reservation or registration of a name, satisfies the requirements of this Act.
on good cause shown at any time after the date of the reservation or registration of the name that is the subject of the application, in any other case.
a company to choose a new name, and to file a notice of an amendment to its Memorandum of Incorporation, within a period and on any conditions that the Tribunal considers just, equitable and expedient in the circumstances, including a condition exempting the company from the requirement to pay the prescribed fee for filing the notice of amendment contemplated in this paragraph.
in terms of the common law, subject to this Act.
imposing obligations on, prohibiting any conduct by, or otherwise regulating the activities of, a juristic person.
subsections (7)(a) and (8) apply, in the case of an application for probation.
subsections (7) and (8) apply, in the case of an application for probation.
any of the circumstances contemplated in subsection (5)(d) to (f) apply with respect to any legislation administered by that organ of state.
the court is satisfied that the declaration of delinquency is justified, having regard to the nature of the contraventions, and the persons conduct in relation to the management, business or property of any company, close corporation or juristic person at the time.
a compromise with creditors in terms of section 155.
the declaration is justified, having regard to the circumstances of the companys or close corporations failure, and the persons conduct in relation to the management, business or property of the company or close corporation at the time.
subsists for a period not exceeding five years, as determined by the court at the time it makes the declaration, subject to subsections (11) and (12).
be limited to serving as a director of a private company, or of a company of which that person is the sole shareholder.
of probation, at any time more than two years after it was made.
there is a reasonable prospect that the applicant would be able to serve successfully as a director of a company in the future.
the powers of a director or prescribed officer of the company, or a person related to the company, are being or have been exercised in a manner that is oppressive or unfairly prejudicial to, or that unfairly disregards the interests of, the applicant.
an order for the trial of any issue as determined by the court.
no further amendment altering, limiting or negating the effect of the court order may be made to the Memorandum of Incorporation, until a court orders otherwise.
[Subs. (4) deleted by s.
enter into a transaction contemplated in section 112, 113, or 114, that notice must include a statement informing shareholders of their rights under this section.
voted in support of the resolution.
has complied with all of the procedural requirements of this section.
if the shareholder does not receive a notice under subsection (4), within 20 business days after learning that the resolution has been adopted.
a demand for payment of the fair value of those shares.
the company, by a subsequent special resolution, revokes the adopted resolution that gave rise to the shareholders rights under this section.
If any of the events contemplated in subsection (9) occur, all of the shareholders rights in respect of the shares are reinstated without interruption.
the day the company received a demand as contemplated in subsection (7)(b), if applicable, the company must send to each shareholder who has sent such a demand a written offer to pay an amount considered by the companys directors to be the fair value of the relevant shares, subject to subsection (16), accompanied by a statement showing how that value was determined.
lapses if it has not been accepted within 30 business days after it was made.
directed the transfer to the company of uncertificated shares.
made an offer that the shareholder considers to be inadequate, and that offer has not lapsed.
the company to pay the fair value in respect of their shares to each dissenting shareholder who complies with subsection (13)(a), subject to any conditions the court considers necessary to ensure that the company fulfils its obligations under this section.
the company must comply with the requirements of subsection 13(b).
[Subs. (15A) inserted by s.
The fair value in respect of any shares must be determined as at the date on which, and time immediately before, the company adopted the resolution that gave rise to a shareholders rights under this section.
ensures that the person to whom the company owes money in terms of this section is paid at the earliest possible date compatible with the company satisfying its other financial obligations as they fall due and payable.
If the resolution that gave rise to a shareholders rights under this section authorised the company to amalgamate or merge with one or more other companies, such that the company whose shares are the subject of a demand in terms of this section has ceased to exist, the obligations of that company under this section are obligations of the successor to that company resulting from the amalgamation or merger.
the application by the company of the solvency and liquidity test set out in section 4.
that the Panel rules otherwise in a particular case, a payment by a company to a shareholder in terms of this section docs not obligate any person to make a comparable offer under section 125 to any other person.
[Subs. (20) inserted by s.
has been granted leave of the court to do so, which may be granted only if the court is satisfied that it is necessary or expedient to do so to protect a legal right of that other person.
serve a notice on the person who made the demand, refusing to comply with it.
that the requirements of subsection (5)(b) are satisfied.
proceedings by or against the company include any appeal from a decision made in proceedings by or against the company.
the person to whom leave has been granted is entitled, on giving reasonable notice to the company, to inspect any books of the company for any purpose connected with the legal proceedings.
any other party to the proceedings or application.
it is appropriate to make the order in all the circumstances.
if the person originally granted leave has already brought the proceedings, the substituting person is taken to have brought those proceedings or to have made that intervention.
the court may take that ratification or approval into account in making any judgment or order.
For greater certainty, the right of a person in terms of this section to serve a demand on a company, or apply to a court for leave, may be exercised by that person directly, or by the Commission or Panel, or another person on behalf of that first person, in the manner permitted by section 157.
any other person.
If the Companies Tribunal, or an accredited entity, to whom a matter is referred for alternative dispute resolution concludes that either party to the conciliation, mediation or arbitration is not participating in that process in good faith, or that there is no reasonable probability of the parties resolving their dispute through that process, the Companies Tribunal or accredited entity must issue a certificate in the prescribed form stating that the process has failed.
has been designated by the Minister in terms of subsection (5) as an accredited entity for the purposes of this Part.
with reasonable notice, withdraw any accreditation granted by it in terms of this section if the person or association no longer satisfies the criteria set out in paragraph (a).
must prescribe criteria for the Commission to follow in assessing whether an applicant for accreditation in terms of subsection (4) meets the requirements of this section.
if the parties to the dispute consent to that order, submit it to a court to be confirmed as a consent order, in terms of its rules.
refuse to make the order.
does not preclude a person applying for an award of civil damages, unless the consent order includes an award of damages to that person.
A court hearing any proceedings concerning a dispute arising out of a consent order may order the proceedings closed to the public if it is the interest of the confidentiality of the parties to the consent order to do so.
with the Commission in respect of any provision of this Act not referred to in paragraph (a), alleging that a person has acted in a manner inconsistent with this Act, or that the complainants rights under this Act, or under a companys Memorandum of Incorporation or rules, have been infringed.
other specified circumstances.
direct an inspector or investigator to investigate the complaint as quickly as practicable, in any other case.
to report to both the Commission or Panel, as the case may be, and the company.
whom the inspector reasonably considers may have information relevant to the investigation of the complaint.
the Panel, refer the matter to the Executive Director, who may, among other things, issue a compliance notice in terms of section 171.
assented to, was implicated in, or directly or indirectly benefited from, a contravention of this Act, unless the alleged contravention could otherwise be addressed in terms of this Act by an application to a court or to the Companies Tribunal.
take any other steps reasonably related to the contravention and designed to rectify its effect.
any penalty that may be imposed in terms of this Act if those steps are not taken.
the Commission, or Executive Director, as the case may be, issues a compliance certificate contemplated in subsection (6).
If the requirements of a compliance notice issued in terms of subsection (1) have been satisfied, the Commission or the Executive Director, as the case may be, must issue a compliance certificate.
refer the matter to the National Prosecuting Authority for prosecution as an offence in terms of section 214(3), but may not do both in respect of any particular compliance notice.
such longer period as may be allowed on good cause shown.
After considering any representations by the applicant and any other relevant information, the Companies Tribunal, the Takeover Special Committee, or a court may confirm, modify or cancel all or part of a compliance notice.
If the Companies Tribunal, the Takeover Special Committee or a court confirms or modifies all or part of a notice, the applicant must comply with that notice as confirmed or modified, within the time period specified in it, subject to subsection (4).
A decision by the Companies Tribunal or the Takeover Special Committee in terms of this section is binding, subject to any right of review by or appeal to a court.
if the person who is the subject of the complaint consents to that order, apply to the High Court to have it confirmed as a consent order, in terms of its rules.
make any other order contemplated in this Act that is just and reasonable in the circumstances.
the maximum prescribed in terms of subsection (5).
whether the respondent has previously been found in contravention of this Act.
A fine payable in terms of this section must be paid into the National Revenue Fund referred to in section 213 of the Constitution.
The Minister may make a regulation prescribing the maximum amount of an administrative fine, which amount must be not less than R1 000 000.
deliver or produce to the Commission or Panel, or to an inspector or independent investigator, any book, document or other object referred to in paragraph (a) at a time and place specified in the summons.
may be served in the same manner as a subpoena in a criminal case issued by the magistrates court.
retain any such book, document or other object for examination, for a period not exceeding two months, or such longer period as the court, on good cause shown, may allow.
the person asking the questions must inform that person of the right set out in paragraph (a).
that anything connected with an investigation in terms of this Act is in the possession of, or under the control of, a person who is on or in those premises.
authorise an inspector or a police officer to enter and search the premises and to do anything listed in section 178.
the expiry of one month after the date it was issued.
if none of those persons is present, affix a copy of the warrant to the premises in a prominent and visible place.
attach, and, if necessary, remove from the premises for examination and safekeeping, anything that has a bearing on the investigation.
to any answer given or statement made to an inspector or police officer in terms of this section.
A person who enters and searches any premises under section 178 must conduct the entry and search with strict regard for decency and order, and with regard for each persons right to dignity, freedom, security and privacy.
allow that person to exercise the right contemplated in paragraph (a).
may conduct those proceedings informally.
for any other reason that would be justifiable in civil proceedings in a High Court.
Subject to the requirements of the applicable sections of this Act, the Companies Tribunal may determine any matter of procedure for an adjudication hearing, with due regard to the circumstances of the case.
The law regarding a witnesss privilege in a criminal case in a court of law applies equally to a person who provides information during an adjudication hearing.
The Commission is hereby established as a juristic person to function as an organ of state within the public administration, but as an institution outside the public service.
in accordance with the values and principles mentioned in section 195 of the Constitution.
a person designated by the Commissioner to perform a particular function of the Commission, is the certificate, notice, decision, determination or ruling of the Commission with respect to that matter.
the efficient, effective and widest possible enforcement of this Act, and any other legislation listed in Schedule 4.
consult any person, organisation or institution with regard to any matter.
In this section, "this Act" has the meaning set out in section 1, but also includes any legislation listed in Schedule 4.
referring matters to a court, and appearing before the court or the Companies Tribunal, as permitted or required by this Act.
making recommendations to the Council for amendments to financial reporting standards, to secure better reliability and compliance.
perform any related functions assigned to it by legislation, or reasonably necessary to carry out its assigned registry functions.
obtain a certificate contemplated in paragraph (b).
Subsection (5) does not apply to any part of a filed document if that part has been determined to be confidential, or contain confidential information, in accordance with section 212.
may waive any such fee if satisfied that any inspection, certificate, copy or extract is required for the purposes of research by or under the control of an institution for higher education.
enquire into and report to the Minister on any matter concerning the purposes of this Act, and advise the Minister in respect of any matter referred to it by the Minister.
over time, reviewing legislation and public regulations, and reporting to the Minister concerning matters relating to company and intellectual property law.
any other regulatory authority any concerns regarding behaviour or conduct that may be prohibited or regulated in terms of legislation within the jurisdiction of that regulatory authority.
may perform any function of the Commissioner when the office of the Commissioner is vacant, or when the Commissioner is absent or is for any reason unable to perform the functions of that office.
the proper and diligent implementation of the Public Finance Management Act, 1999 (Act No. 1 of 1999), with respect to the Commission.
delegate, with or without conditions, any of the powers or functions of the Commissioner to the Deputy Commissioner or any other suitably qualified employee of the Commission, but any such delegation does not divest the Commissioner of responsibility for the exercise or any power or performance of any duty.
any matter or circumstances with respect to the administration of one or more companies in terms of this Act, whether or not those circumstances appear at the time of the direction to amount to a possible contravention of this Act.
Commission on the management of the Commissions resources, or the performance of any of its functions.
The Minister may assign specific powers to the members of a specialist committee for the purposes of performing any function contemplated in subsection (1).
determine its own procedures.
not more than two senior employees of the Commission designated by the Commissioner.
have the ability to perform effectively as a member of that committee.
use their position or any information entrusted to them to enrich themselves or improperly benefit any other person.
members term has expired.
A member of a specialist committee who has a personal or financial interest in any matter on which the committee gives advice must disclose that interest and withdraw from the proceedings of the specialist committee when that matter is discussed.
a member designated as contemplated in (1)(b)(ii), to the extent that the members remuneration and expense compensation as an employee of the Commission does not extend to that persons services as a member of the specialist committee.
must perform its functions impartially and without fear, favour, or prejudice, and in as transparent a manner as is appropriate having regard to the nature of the specific function.
appoint a person to fill any vacancy on the Tribunal.
reappointed to a second term as chairperson of the Tribunal.
sufficient persons with legal training and experience to satisfy the requirements of section 195(3)(a).
the chairperson is for any other reason temporarily unable to perform those functions.
The chairperson and each other member of the Tribunal serves for a term of five years and may, subject to subsection (2)(b), be reappointed for a second term.
perform any other function assigned to it by or in terms of this Act, or any law mentioned in Schedule 4.
a panel composed of any three members of the Tribunal, in any other case.
designate a member of the panel to preside over the panels proceedings.
terminate the proceedings before that panel and constitute another panel, which may include any member of the original panel, and direct that panel to conduct a new hearing.
A decision by the Companies Tribunal with respect to a decision of, or a notice or order issued by, the Commission is binding on the Commission, subject to any review by, or appeal to, a court.
An order of the Companies Tribunal may be filed in the High Court as an order of the court, in accordance with its rules.
not more than a number, being 15 minus the total number of persons designated in terms of paragraph (c), of other persons appointed by the Minister on the basis of their knowledge and experience in the regulation of securities and takeovers.
are subject to the provisions of sections 206 and 207.
co-opted in terms of subsection (2), serve until the completion of the purpose for which they were co-opted.
two of its members to be deputy chairpersons of the Panel.
presides at meetings of the Panel, if present.
one or more deputy Executive Directors, on terms and conditions determined by the Panel.
appoint other officers and employees as are required for the proper performance of functions of the Panel.
each member of the Takeover Special Committee.
consult with the Minister in respect of additions, deletions or amendments to the Takeover Regulations.
perform any other function assigned to it by legislation.
at least two other persons, each of whom must be designated from time to time by the Panel from among those of its members appointed by the Minister in terms of section 197(1)(d).
review compliance notices issued by the Executive Director, or a deputy Executive Director acting in the capacity of the Executive Director.
one person nominated by the executive officer of the Financial Services Board as defined in the Financial Services Board Act, 1990 (Act No.
a number of persons, nominated one each by any exchange that imposes adherence to financial reporting standards as a listing requirement, each of whom must be appointed by the Minister, to serve for a term of three years.
appoint the chairperson and deputy chairperson of the Council.
are subject to sections 206 and 207.
consult with the Minister on the making of regulations establishing financial reporting standards, subject to the requirements set out in section 29(5).
have submitted to the Minister a written declaration stating that the person is not disqualified in terms of subsection (2).
is subject to an order of a competent court holding that person to be mentally unfit or disordered.
A member of the Companies Tribunal, the Panel or the Council, must promptly inform the Minister in writing after that person or a related persons acquires a personal financial interest that is, or is likely to become, an interest contemplated in section 205(2)(b).
as otherwise required as part of that persons official functions as a member of the Companies Tribunal, the Panel or the Council.
withdraw from the meeting to allow the remaining members to discuss the matter and determine whether the member should be prohibited from participating in any further proceedings concerning that matter.
a member who had such an interest attended those proceedings, participated in them in any way, or directly or indirectly influenced those proceedings.
less than one month written notice, with the approval of the Minister.
neglected to properly perform the functions of their office.
divulge any information referred to in paragraph (c) to any third party, except as required as part of that persons official functions within the Commission or panel.
must issue each inspector with a certificate in the prescribed form stating that the person has been appointed as an inspector in terms of this Act.
of a peace officer as defined in section 1 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), and may exercise the powers conferred on a peace officer by law.
The Commissioner and Executive Director may each appoint or contract with any suitably qualified person to assist the Commission, or the Panel, as the case may be, in carrying out its functions, including, but not limited to, conducting research, audits, inquiries or other investigations on behalf of the Commission or Panel, as the case may be, but a person appointed in terms of this subsection is not an inspector within the meaning of this Act.
other money accruing from any source.
ends on the next following 31 March.
The Commissioner or Executive Director, as the case may be, in consultation with the Minister and with the concurrence of the Minister of Finance, may determine the remuneration, allowances, benefits, and conditions of appointment of each employee of the Commission or Panel, as the case may be.
At least once every five years, the Minister must conduct an audit review of the exercise of the functions and powers of the Commission, the Companies Tribunal, the Panel and the Council.
When submitting information to the Commission, the Panel, the Companies Tribunal, the Council, or an inspector or investigator appointed in terms of this Act, a person may claim that all or part of that information is confidential.
Any claim contemplated in subsection (1) must be supported by a written statement explaining why the information is confidential.
as soon as practicable, make a decision on the confidentiality of the information and access to that information, and provide written reasons for that decision.
When making any ruling, decision or order in terms of this Act, the Commission, the Panel, the Companies Tribunal or the Council may take confidential information into account.
If any reasons for a decision in terms of this Act would reveal any confidential information, the Commission, the Panel, the Companies Tribunal or the Council, as the case may be, must provide a copy of the proposed reasons to the party claiming confidentiality at least 10 business days before publishing those reasons.
Within five business days after receiving a copy of proposed reasons in terms of subsection (6), a party may apply to a court for an appropriate order to protect the confidentiality of the relevant information.
is a party to the preparation, approval, dissemination or publication of a prospectus or a written statement contemplated in section 101, that contains an "untrue statement" as defined and described in section 95.
the scheme, structure or form of words is of such a nature that the person knew, or ought reasonably to have known, that its inclusion or other use in connection with the preparation of the document would cause it to be false or misleading.
It is an offence to fail to satisfy a compliance notice issued in terms of this Act, but no person may be prosecuted for such an offence in respect of a particular compliance notice if the Commission or Panel, as the case may be, has applied to a court in terms of section 171(7)(a) for the imposition of an administrative fine in respect of that persons failure to comply with that notice.
liable to any other person for any losses sustained as a consequence of that contravention.
It is an offence to hinder, obstruct or improperly attempt to influence the Commission, the Panel, the Companies Tribunal, an inspector or investigator, or a court when any of them is exercising a power or performing a duty delegated, conferred or imposed by this Act.
attaches or removes an article or document.
Despite anything to the contrary contained in any other law, a Magistrates Court has jurisdiction to impose any penalty provided for in section 216.
Subject to any provision in this Act specifically declaring void an agreement, resolution or provision of an agreement, Memorandum of Incorporation, or rules of a company, nothing in this Act renders void any other agreement, resolution or provision of an agreement, Memorandum of Incorporation or rules of a company that is prohibited, voidable or that may be declared unlawful in terms of this Act, unless a court has made a declaration to that effect regarding that agreement, resolution or provision.
sent by registered mail to that persons last known address.
The State, the Commission, the Commissioner, the Companies Tribunal, the Panel, an inspector, or any state employee or similar person having duties to perform under this Act, is not liable for any loss sustained by or damage caused to any person as a result of any bona fide act or omission relating to the performance of any duty under this Act, unless gross negligence is proved.
in general, any ancillary or incidental matter that is necessary for the proper implementation and administration of this Act.
In the case of regulations prescribing financial reporting standards as contemplated in section 29(4)(a), the provisions of subsection (2) do not apply.
This Act is called the Companies Act, 2008, and, subject to subsection (2), comes into operation on a date fixed by the President by proclamation in the Gazette.
Section 11(1)(a)(ii) and (iii) shall come into operation three years from the date of commencement of this Act.
[S. 225 substituted by s.
be consistent with the principles set out in sub-items (2) to (9).
[Para. (b) amended by s.
directly or indirectly, alone or with any other person, carry on any business, trade or undertaking consistent with or ancillary to its stated objects.
in respect of any legal obligation binding on the company.
[Words preceding subpara. (i) amended by s.
[Words preceding para. (a) amended by s.
[Subpara. (i) amended by s.
apply to the court for such a determination.
Incorporation as a non-profit company in terms of this Act, or registration as an external non-profit company in terms of this Act, and compliance by either with the provisions of this Act does not necessarily qualify that non-profit company, or external non-profit company, for any particular status, category, classification or treatment in terms of the Income Tax Act, 1962 (Act No. 58 of 1962), or any other legislation, except to the extent that any such legislation provides otherwise.
Each voting member of a non-profit company has at least one vote.
The vote of each member of a non-profit company is of equal value to the vote of each other voting member on any matter to be determined by vote of the members, except to the extent that the companys Memorandum of Incorporation provides otherwise.
If a non-profit company has members, the requirement in section 24(4) to maintain a securities register must be read as requiring the company to maintain a membership register.
dispose of any part of its assets, undertaking or business to a profit company, other than for fair value, except to the extent that such a disposition of an asset occurs in the ordinary course of the activities of the non-profit company.
amalgamate or merge with another non-profit company, must be submitted to the voting members for approval, in a manner comparable to that required of profit companies in accordance with sections 112 and 113, respectively.
Sections 115 and 116, read with the changes required by the context, apply with respect to the approval of a proposal contemplated in sub-item (2).
[Sub-item (3) amended by s.
its first members, if its Memorandum of Incorporation provides for it to have members.
A non-profit company is not required to have members, but its Memorandum of Incorporation may provide for it to do so.
the grounds on which membership may, or will, be suspended or lost.
if any directors are to be elected by the voting members, provide for the election each year of at least one-third of those elected directors.
If a non-profit company has no members, the Memorandum of Incorporation must set out the basis on which directors are to be appointed by its board, or other persons.
A non-profit company must not provide a loan to, secure a debt or obligation of, or otherwise provide direct or indirect financial assistance to, a director of the company or of a related or inter-related company, or to a person related to any such director.
is in terms of an employee benefit scheme generally available to all employees or a specific class of employees.
A close corporation may file a notice of conversion in the prescribed manner and form, at any time.
the prescribed filing fee.
[Sub-item (2) substituted by s.
Section 14, read with the changes required by the context, applies with respect to the filing of a notice of conversion, as if it were a Notice of Incorporation in terms of this Act.
enable the Registrar of Deeds to effect the necessary changes resulting from conversions and name changes.
Every member of a close corporation converted under this Schedule is entitled to become a shareholder of the company resulting from that conversion, but the shares to be held in the company by the shareholders individually need not necessarily be in proportion to the members interests as stated in the founding statement of the close corporation concerned.
any enforcement measures that could have been commenced with respect to the close corporation in terms of the Close Corporations Act, 1984 (Act No.
any liability of a member of the corporation for the corporations debts, that had arisen in terms of the Close Corporations Act, 1984 (Act No. 69 of 1984), and existed immediately before the date of registration, survives the conversion and continues as a liability of that person, as if the conversion had not occurred.
Amendment of section 1 of Act 69 of 1984, as amended by section 1 of Act 38 of 1986, section 1 of Act 26 of 1997, section 1 of Act 22 of 2001 and section 57 of Act 24 of 2006 1.
" Companies Act means the Companies Act, [1973 (Act No.
1(1) has the meaning determined in accordance with section 3 of the Companies Act.
"this Act includes the regulations, and any regulations made in terms of the Companies Act, to the extent that they apply to this Act.".
"(1) [Any] At any time before section 13 of the Companies Act comes into operation, any one or more persons, not exceeding ten, who qualify for membership of a close corporation in terms of this Act, may form a close corporation and secure its incorporation by complying with the requirements of this Act in respect of the registration of its founding statement referred to in section 12.".
If a founding statement referred to in section 12 complying with the requirements of this Act is lodged with the Registrar in the manner prescribed at any time before section 13 of the Companies Act comes into operation, and if the business to be carried on by the corporation is lawful, the Registrar shall upon payment of the prescribed fee register such statement in his or her registers and shall give notice of the registration in the prescribed manner.
Section 27 of the Close Corporations Act is hereby repealed with effect from the date on which Schedule 2 of the Companies Act comes into operation.
in terms of the Companies Act, in the case of a juristic person that has been converted to a company.
the application of section 11(3) of the Companies Act to a corporation is subject to the provisions of section 22(1) of this Act.
Any person who intends to form a corporation or any corporation which intends to change its name [shall] may apply to the Registrar for the reservation of a name, on the prescribed form and on payment of the prescribed fee [, apply to the Registrar for the reservation of a name: Provided that a company being converted into a corporation in terms of this Act shall not be required to so reserve its name if the name remains identical].
Sections 14(2) and (3), 16(8), and 160 of the Companies Act, each read with the changes required by the context, apply to a corporation or with respect to a reserved name, or an application to reserve a name in terms of section 19(2), but a reference in any of those provisions to a company must be regarded as a reference to a corporation for the purposes of this Act.
Item 4 amended by s.
Section 22(2) and (4) of the Close Corporations Act is hereby repealed.
Section 32 of the Companies Act, read with the changes required by the context, applies to a corporation, but a reference in that section to a company must be regarded as a reference to a corporation for the purposes of this Act.
Section 41 of the Close Corporations Act is hereby repealed.
"(3) Regulations made by the Minister in terms of section 29(4) and (5), and 30(7) of the Companies Act apply to a corporation as if those regulations had been made in terms of this Act, but any reference in those regulations to a company must be read as a reference to a corporation.".
"(c) any person who is [subject to any order of a court under] disqualified from being a director of a company in terms of section 69(8) to (11) of the Companies Act, subject to subsection (1B) [disqualifying him or her from being a director of a company]."
(1A) A person who has been placed under probation by a court in terms of section 162 of the Companies Act or subsection (1C), must not participate in the management of the business of a corporation, except to the extent permitted in the order of probation.
that person and other persons, all of whom are related to that disqualified person, and each such person has consented in writing to that disqualified person participating in the management of the corporation.
a director, must be regarded as referring to a director of a company, or a member participating in the management of a corporation.
Section 55 of the Close Corporations Act is hereby repealed.
(1) The members of a corporation shall within [nine] six months after the end of every financial year of the corporation cause annual financial statements in respect of that financial year to be made out in one of the official languages of the Republic.
(2A) Section 30(2)(b), and (3) to (6) of the Companies Act, read with the changes required by the context, apply to a corporation that is required by the regulations made in terms of section 30(7) of the Companies Act, to have its annual financial statements audited.
62A. (1) Section 34(2) of the Companies Act, read with the changes required by the context, apply to a corporation.
prevails over any conflicting provision of this Act, with respect to a corporation contemplated in paragraph (a).
a shareholder of a company, or the holder of securities issued by a company, must be read as a reference to a member of a corporation.
"(1) The [provisions] laws mentioned or contemplated in item 9 of Schedule 5 of the Companies Act, [which relate to the winding-up of a company, including the regulations made thereunder, (except sections 311, 312, 313, 337, 338, 344, 345, 346(2), 347(3), 349, 364, 365(2), 367 to 370, inclusive, 377, 387, 389, 390, 395 to 399, inclusive, 400(1)(b), 401, 402, 417, 418,419(4), 421, 423 and 424),] read with the changes required by the context, [shall] apply [mutatis mutandis and in so far as they can be applied] to the liquidation of a corporation in respect of any matter not specifically provided for in this Part or in any other provision of this Act.".
Part G of Chapter 2 of the Companies Act, read with the changes required by the context, applies to a solvent corporation.
This Part of this Act must be administered in accordance with the laws mentioned or contemplated in item 9 of Schedule 5 of the Companies Act.
Section 68 of the Close Corporations Act is hereby repealed.
Sections 81(1)(f), 81(3), 82(3) to (4), and 83 of the Companies Act, each read with the changes required by the context, apply with respect to the deregistration of a corporation, but a reference in any of those provisions to a company must be regarded as a reference to a corporation for the purposes of this Act.
Section 3(1) of the Close Corporations Act is hereby repealed.
[subject to the directions of the Minister, be] is responsible for the administration of the Registration Office.
"(3) The [Registrar] Commission may delegate any of the powers and entrust any of the duties [assigned to him or her by this Act] of the Registrar to any officer or employee in the [public service] Commission.".
Sections 11 and 16(3) of the Close Corporations Act are hereby repealed.
Sections 47(2), 49(5) and 58(4) of the Close Corporations Act are hereby repealed.
"(2) [Without prejudice to any other criminal liability incurred where] If any business of a corporation is carried on in any manner contemplated in subsection (1), every person who is knowingly a party to the carrying on of the business in any such manner, shall be guilty of an offence.".
Parts D, E, and F of Chapter 7, and Part A of Chapter 9 of the Companies Act, read with the changes required by the context, apply with respect to any alleged contravention of this Act or contravention of any provision of the Companies Act to the extent the provision applies to a corporation or its members.
Amendment of section 1 of Act 62 of 1977 1.
Repeal of section 2 of Act 62 of 1977 2. Section 2 of the Registration of Copyright in Cinematograph Films Act, 1977, is hereby repealed.
(1) The Commission may exercise the powers and must perform the duties assigned to the registrar by this Act and is responsible for the administration of the registration office.
The [Registrar] Commission may delegate any of the powers and entrust any of the duties assigned to [him] the registrar by this Act, to any officer or employee in the [public service] Commission.
Amendment of section 2 of Act 57 of 1978, as amended by section 1 of Act 76 of 1988, section 1 of Act 49 of 1996, section 27 of Act 38 of 1997 and section 1 of Act 20 of 2005 1.
Repeal of section 5 of Act 57 of 1978 2. Section 5 of the Patents Act, 1978, is hereby repealed.
Amendment of section 7 of Act 57 of 1978 3.
[and who shall, subject to the directions of the Minister, have the chief control] is responsible for the administration of the patent office.
"(3) The Commission may delegate any of the powers and entrust any of the duties assigned to the registrar by this Act, to any officer or employee in the Commission."
Amendment of section 1 of Act 98 of 1978, as amended by section 1 of Act 56 of 1980, section 1 of Act 66 of 1983, section 1 of Act 52 of 1984, section 1 of Act 13 of 1988, section 1 of Act 125 of 1992, section 50 of Act 38 of 1997 and section 1 of Act 9 of 2002 1.
Amendment of section 1 of Act 59 of 1980 1.
"Companies Act means the Companies Act, [1973 (Act No.
"Registrar means the Commissioner, appointed in terms of section 189 of the Companies Act;".
Amendment of section 2 of Act 194 of 1993 1.
"trade marks office means the office of the Commission;".
Repeal of section 5 of Act 194 of 1993 2. Section 5 of the Trade Marks Act, 1993, is hereby repealed.
Amendment of section 6 of Act 194 of 1993 3.
is responsible for the administration of the trade marks office.
the repeal of subsections (2) and (4).
Amendment of section 1 of Act 195 of 1993 as amended by section 69 of Act 38 of 1997 1.
Repeal of section 4 of Act 195 of 1993 2. Section 4 of the Designs Act, 1993, is hereby repealed.
Amendment of section 6 of Act 195 of 1993 3.
[and who shall, subject to the directions of the Minister, have the chief control] is responsible for the administration of the designs office.
"(4) The Commission may delegate any of the powers and entrust any of the duties assigned to the registrar by this Act, to any officer or employee in the Commission."
Amendment of section 1 of Act 14 of 2005 1.
"registrar means the [Registrar of Co-operatives] Commissioner, appointed in terms of section 189 of the Companies Act;".
Amendment of section 78 of Act 14 of 2005 1.
(2) The [registrar] Commission may, from time to time, delegate any power conferred on [him or her] the registrar by or under this Act to any officer or employee in the [public service] Commission.
"Vlaglied" Copyright Act, 1974 (Act No.
Part A of Chapter 4 of the Consumer Protection Act, 2008 (Act No.
[Schedule 4 amended by s.
"previous Act" means the Companies Act, 1973 (Act No. 61 of 1973).
to an item or a subitem by number is a reference to the corresponding item or subitem of this Schedule.
the Minister has the authority to, and bears the responsibility of, exercising any such function or performing any such power assigned by this Act to the Commission.
recognised as an "existing company" in terms of the Companies Act, 1973 (Act No. 61 of 1973), continues to exist as a company, as if it had been incorporated and registered in terms of this Act, with the same name and registration number previously assigned to it, subject to item 4.
may continue to use a translated name that, immediately before the effective date, was registered and otherwise met the requirements of section 50(2) of the previous Act.
[Sub-item (2) inserted by s.
[Sub-item (3) inserted by s.
item 6(2) of this Schedule.
[Sub-item (4) inserted by s.
take any other particular action required in terms of this Act or the companys Memorandum of Incorporation, the company may apply to the Tribunal for directions, and a member of the Tribunal may make an administrative order that is appropriate and reasonable in the circumstances.
[Sub-item (5) inserted by s.
[Sub-item (6) inserted by s.
the provisions of this Act will apply to each subsequent financial year end and annual financial statements of that company.
[Sub-item (7) inserted by s.
[Heading of item 3 substituted by s.
Any matter pending before the Registrar under the previous Act, or a provision of the Close Corporations Act, (Act No. 69 of 1984), amended by this Act, before the effective date and not fully addressed at that time, must be concluded by the Registrar in terms of such Act, despite its repeal or amendment.
[Sub-item (1) substituted by s.
Any conversion of a company to a close corporation in terms of section 27 of the Close Corporations Act 1984 (Act No. 69 of 1984), filed with the Registrar before the effective date and not fully addressed at that time must be concluded by the Registrar in terms of that Act, despite the repeal of that section.
be a pre-existing company for all purposes of this Act.
[Para. (a) amended by s.
if it fails to file a notice in terms of subparagraph (i), is deemed to have amended its Memorandum of Incorporation as of the general effective date to expressly state that it is a non-profit company, and have changed its name in so far as required to comply with section 11(3).
[Para. (d) amended by s.
if necessary, a notice of name change and copy of a special resolution contemplated in section 16, to alter its name to meet the requirements of this Act.
after the two year period, to the extent that they are consistent with this Act.
after the two-year period contemplated in paragraph (a), to the extent that the agreement is consistent with this Act and the company's Memorandum of Incorporation.
[Sub-item (3A) inserted by s.
consistent with a provision that prevails over this Act in terms of paragraph (a).
[Sub-item (4) substituted by s.
Section 35(2) does not apply to a bank, as defined in the Banks Act, 1993 (Act No. 124 of 1993), until a date declared by the Minister, after consulting the member of the Cabinet responsible for national financial matters.
The Minister, in consultation with the member of Cabinet responsible for national financial matters, must make regulations, to take effect as of the general effective date, providing for the optional conversion and transitional status of any nominal or par value shares, and capital accounts of a pre-existing company, but any such regulations must preserve the rights of shareholders associated with such shares, as at the effective date, to the extent doing so is compatible with the purposes of this item.
[Sub-item (3) substituted by s.
does not invalidate that share certificate.
Section 164 does not apply with respect to the conversion by a company of par value or nominal value shares of a pre-existing company in terms of this item, and in accordance with the regulations.
A person holding office as a director, prescribed officer, company secretary or auditor of a pre-existing company immediately before the effective date, continues to hold that office as from the effective date, subject to the companys Memorandum of Incorporation, and this Act.
[Sub-item (1) amended by s.
A person contemplated in sub-item (1) who, in terms of this Act, is ineligible to be, or disqualified from being, a director, alternate director, prescribed officer, company secretary or auditor is regarded as having resigned from every such office in any company as from the effective date.
the actual number of directors of that pre-existing company immediately before the effective date, if that number is less than the minimum referred to in paragraph (a).
A vacancy in the office of director, company secretary or auditor of a pre-existing company as from the effective date, irrespective whether arising by operation of subitem (2) or (3), or otherwise, is to be filled in accordance with this Act.
Approval of any distribution, financial assistance, insider share issues, or options, are subject to this Act, even if any such action had been approved by a companys shareholders before the effective date, despite anything to the contrary in the companys Memorandum of Incorporation.
include in its notice of incorporation in terms of the previous Act a prominent statement comparable to that required by section 13(3) of this Act.
Section 19(4) applies to any provision of the Memorandum of Incorporation of a pre-existing company that is comparable to a provision contemplated in section 15(2), from the time that the company files a notice of that provision.
The five consecutive financial years contemplated in section 92(1) must be calculated from the date of commencement of this Act.
[Sub-item (11) substituted by s.
the person concerned may file a request contemplated in paragraph (a),at no charge, any time within 120 business days after the date of the Commissions notice.
a defensive name, or renewal of the registration of a defensive name, in terms of section 43 of the previous Act that was in effect immediately before the effective date must be regarded as if it had been registered in terms of section 12(9) of this Act, as from the actual date on which that registration or renewal was granted.
Despite the repeal of the previous Act, until the date determined in terms of subitem (4), Chapter 14 of that Act continues to apply with respect to the winding- up and liquidation of companies under this Act, as if that Act had not been repealed subject to subitems (2) and (3).
If there is a conflict between a provision of the previous Act that continues to apply in terms of subitem (1), and a provision of Part G of Chapter 2 of this Act with respect to a solvent company, the provision of this Act prevails.
prescribe ancillary rules as may be necessary to provide for the efficient transition from the provisions of the repealed Act, to the provisions of the alternative legislation contemplated in paragraph (a).
Any right or entitlement enjoyed by, or obligation imposed on, any person in terms of any provision of the previous Act, that had not been spent or fulfilled immediately before the effective date is a valid right or entitlement of, or obligation imposed on, that person in terms of any comparable provision of this Act, as from the date that the right, entitlement or obligation first arose, subject to the provisions of this Act.
A document that, before the effective date, had been served or filed in accordance with the previous Act must be regarded as having been satisfactorily served or filed for any comparable purpose of this Act.
section 197 of the Labour Relations Act, 1995 (Act No.
any collective agreement reached between the State and the trade union parties of the Departmental Chamber of the Public Service Bargaining Council before the effective date.
A person referred to in sub-items (1) and (2) remains subject to any decisions, proceedings, rulings and directions applicable to that person immediately before the effective date, and any proceedings against such a person, that were pending immediately before the effective date, must be disposed of as if this Act had not been enacted.
[Sub-item (4) amended by s.
remains a member of the Government Employees Pension Fund mentioned in section 2 of the Government Employees Pension Law, 1996 (Act No.
is entitled to pension and retirement benefits as if that person were in service in a post classified in a division of the public service mentioned in section 8(1)(a)(i) of the Public Service Act, 1994 (Proclamation No. 103 of 1994).
[Sub-item (5) amended by s.
the assets and liabilities of the Securities Regulation Panel established by section 440B of the Companies Act, 1973, are transferred to and are assets and liabilities, respectively, of the Panel.
any person contemplated in this subitem who, as an employee or office holder of the Securities Regulation Panel immediately before the general effective date, had any rights to participate in, or vested rights in terms of, any pension scheme or medical scheme, retains those rights, subject to any further determination by the Panel in the exercise of its authority set out in sections 200(1), 200 (2)(b) and 210(3).
is subsequently appointed to an office within, or re-employed by, the Panel, sections 200(1), 200 (2)(b) and 210 (3) apply with respect to that person as if the person were being so appointed or employed by the Panel for the first time.
a court may make any order that could have been made in the circumstances by a court under that Act.