The abovementioned Bill is hereby published for comment.
[ ] brackets fromWords in bold type in square indicate omissions existing enactments.
0 AMENDtheCompaniesAct, 1973, so as topreventcompanies to have delinquent directors to serveas directors or in the management of such companies. and to protect a bona fide owner or holder of a dematerialized share certificate against rectification order by a court of law, and to provide for matters incidental thereto.
Amendment of sections of theCompaniesAct,1973(Act No. 61 of 1973) 5 1.
Definition of 'Master' substituted by s. 1(1) of Act 84 of 1980.
No. 32 of 1998.
91A Bytheinsertion in subsection (4) after paragraph (c) of the following subsections: 25 (cA) A court may not order the name of a member of a company to be removed had notice of a fraud or illegality, as in paragraph (c).
The provisions of subsection (cA) shall not preclude a court from awarding damages, whetherundersection 115 of the Act or in common law.
6 of 1958, or any offence involving dishonestyorinconnection with the promotion, formation or management of a company, and has been sentenced therefore to imprisonment without the option of a fine or to a fine exceeding one hundred rand.
Insolvency Act, 1936,and the Registrar of the Court shall upon any order or conviction as contemplated in subsection l(e)(ii)and (iii),send a copy of the order or conviction, as the case may be. to the Registrar of Companies who shall notify each company of which the person to whom the order or conviction relates is a director, of the order or conviction.
The Registrar of Companies shall establish and maintaina register of the orders and convictions under subsection (2)(a)and such register shall be open to inspection rnutatis mutandis as if it were a register contemplated in section 113.
[(2)] (21Any person disqualified from being appointed or acting as a director of a company and who purports toact as a director or directly or indirectly takes partin or is concerned in the management of any company, and any director or officer who knew or should reasonably have known of the contraventionshall be guilty of an offence.
[(3)] (5)Nothing in this section shall be construed as preventing a company from providing in its articles for any further disqualifications for the appointment of or the retention of office by any person as a director of such company.
has been guilty of an offence referred to in section 424, whether or not he has been convicted of that offence; or has otherwise been guilty while an officerof the company of any fraud in relation to the company or of any breach of his duty to the company: or a declaration has been made in respect of any person under section 424 (1).
by the Court having jurisdiction to wind up the company affected by the act or omission in respect of which the order is sought, on application by the Master. or, in the case of a company being wound up or under judicial management.
in the case of an order in the circumstances set out in paragraph (a) ofthat subsection, also summarily by the Court convicting the person concerned, and any leave required under that subsection may be granted by the Court having jurisdiction to wind up the company in relation to which such leave is sought.
(b)The applicant for any such order shall give not less than ten days' notice of his intention to apply for the order, to the person against whom the order is sought and such person may attend the hearing of the application and give evidence and call witnesses to give evidence on his behalf.
(3)Where an order under subsection(1) has been made, the person to whom the order relates shall give not less than ten days' notice to the Master, the [Attorney-General] National director or Deputy National director, the liquidator or the person who was the judicial manager of the company concerned, of any application he intends making for leave of the Court referred to in subsection (l),who shall draw the attention of the Court to any matter which may appear to them to be relevant, may give evidence and call witnesses.
(a)For the purposes of subsection (1) (b)(ii)the reference therein to an officer of a company shall be construed as including a reference to any person in accordance with whose directions or instructions the directors of the company have been accustomed to act.
(6)Anorder may be made under the said subsection (1) (b)(ii) whether or not criminal proceedings have been instituted in respect of any matter on which the order is based.
(5)(a)A copy of the order made under subsection (1) shall within seven days after the making of the order be transmitted by the Registrar of the Court to the Registrar of Companies, who must notify every company of which the person to whom the order relates is a director.
(6)The Registrar of Companies shall establish and maintain a register of the orders and convictions under subsection (5)(a)and such register shall be open to inspection rmtatis rnlrtandis as if it were a register contemplated in section 113.
[(S)] (6)Any person who contravenes any order made under subsection (1) and any directororofficer of a company in respect of which such a person is appointed or acts as a director or purports to act as a director or directly or indirectly takes part in or is concerned in the management of any company, who knew or should reasonably have known of the contravention shall be guilty of an offence.
Any person disqualified under this section from being appointed or acting as a director of a company and who purports to act as a director or directly or indirectly takes part in or is concerned in the management of any company shall, together with the directors and officers who knew or whoshould reasonably have known of such disqualification, be jointly and severally liable for all debts incurred by the company for the period during which that person held such appointment or acted as director or directly or indirectly took part in or was concerned in the management of the company.