No. 71 of 2008: Companies Act, 2008.
Rights to seek speciï¬c remedies 30 160.
''Auditing Profession Act'' means the Auditing Profession Act, 2005 (Act No.
''Banks Act'' means the Banks Act, 1993 (Act No.
Securities Services Act, 2004 (Act No.
Companies Act, 1973 (Act No.
Close Corporations Act, 1984 (Act No.
was in existence and recognised as an 'existing company' in terms of the Companies Act, 1973 (Act No. 61 of 1973); or was deregistered in terms of the Companies Act, 1973 (Act No. 61 of 1973), and has subsequently been re-registered in terms of this Act; ''Competition Act'', means the Competition Act, 1998 (Act No.
Communications and Transactions Act, 2002 (Act No.
taken other measures which, if taken, would reasonably be expected to have provided the person with actual knowledge of the matter; ''listed securities'' has the meaning set out in section 1 of the Securities Services Act, 2004 (Act No. 36 of 2004); ''Master'' means the person holding the office of that name in terms of the Supreme Court Act, 1959 (Act No.
2004 (Act No.
at a shareholders meeting, with the support of more than 50% of the voting rights exercised on the resolution, or a higher percentage as contemplated in section 65(8); or by holders of a company's securities acting other than at a meeting, as contemplated in section 60; ''organ of state'' has the meaning set out in section 239 of the Constitution; ''Panel'' means the Takeover Regulation Panel, established by section 196; ''participant'' has the meaning set out in section 1 of the Securities Services Act, 2004 (Act No.
means a direct material interest of that person, of a ï¬nancial, monetary or economic nature, or to which a monetary value may be attributed; 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.
''registered trade union'' means a trade union registered in terms of section 96 of the Labour Relations Act, 1995 (Act No.
the Companies Act, 1973 (Act No.
the Close Corporations Act, 1984 (Act No.
any other law, means any document issued to the company in terms of that law as evidence of the company's incorporation; or registered external company, means the certiï¬cate of registration issued to it in terms of this Act or the Companies Act, 1973 (Act No. 61 of 1973); ''registry'' means a depository of documents required to be kept by the Commission in terms of section 187(4); ''regulated person or entity'' means a person that has been granted authority to conduct business by a regulatory authority; ''regulation'' means a regulation made under this Act; ''regulatory authority'' means an entity established in terms of national or provincial legislation responsible for regulating an industry, or sector of an industry; ''related'', when used in respect of two persons, means persons who are connected to one another in any manner contemplated in section 2(1)(a) to (c); ''relationship'' includes the connection subsisting between any two or more persons who are related or inter-related, as determined in accordance with section 2; ''rules'' and ''rules of a company'' means any rules made by a company as contemplated in section 15(3) to (5); ''securities'' has the meaning set out in section 1 of the Securities Services Act, 2004 (Act No.
falls within the meaning of ''state-owned enterprise'' in terms of the Public Finance Management Act, 1999 (Act No. 1 of 1999); or is owned by a municipality, as contemplated in the Local Government: Municipal Systems Act, 2000 (Act No.
''subsidiary'' has the meaning determined in accordance with section 3; ''Takeover Regulations'' means the regulations made by the Minister in terms of sections 120 and 223; ''this Act'' includes the Schedules and regulations; ''unalterable provision'' means a provision of this Act that does not expressly contemplate that its effect on any particular company may be negated, restricted, limited, qualiï¬ed, extended or otherwise altered in substance or effect by a company's Memorandum of Incorporation or rules; ''uncertiï¬cated securities'' means any securities deï¬ned as such in section 29 of the Securities Services Act, 2004 (Act No.
carry voting rights with respect to that matter; or are presently convertible to securities that carry voting rights with respect to that matter; and ''wholly-owned subsidiary'' has the meaning determined in accordance with section 3(1)(b).
a person directly or indirectly controls each of them, or the business of each of them, as determined in accordance with subsection (2).
in the case of a juristic person that is a trust, that ï¬rst person has the ability to control the majority of the votes of the trustees or to appoint the majority of the trustees, or to appoint or change the majority of the beneï¬ciaries of the trust; or that ï¬rst person has the ability to materially inï¬uence 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).
With respect to any particular matter arising in terms of this Act, a court, the Companies Tribunal or the Panel may exempt any person from the application of a provision of this Act that would apply to that person because of a relationship contemplated in subsection (1) if the person can show that, in respect of that particular matter, there is sufficient evidence to conclude that the person acts independently of any related or inter-related person.
is or are directly or indirectly able to exercise, or control the exercise of, a majority of the general voting rights associated with issued securities of that company, whether pursuant to a shareholder agreement or otherwise; or has or have the right to appoint or elect, or control the appointment or election of, directors of that company who control a majority of the votes at a meeting of the board; or 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 as nominee for another person are to be treated as held by that other person; or a person in a ï¬duciary capacity are to be treated as held by the beneï¬ciary of those voting rights.
For the purposes of subsection (2), 'hold', or any derivative of it, refers to the registered or direct or indirect beneï¬cial holder of securities conferring a right to vote.
12 months after the date on which the test is considered; or in the case of a distribution contemplated in paragraph (a) of the deï¬nition of 'distribution' in section 1, 12 months following that distribution.
must consider a fair valuation of the company's assets and liabilities, including any reasonably foreseeable contingent assets and liabilities, irrespective of whether or not arising as a result of the proposed distribution, or otherwise; and may consider any other valuation of the company's assets and liabilities that is reasonable in the circumstances; and unless the Memorandum of Incorporation of the company provides otherwise, a person applying the test in respect of a distribution contemplated in paragraph (a) of the deï¬nition of 'distribution' in section 1 is not to be regarded 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.
This Act must be interpreted and applied in a manner that gives effect to the purposes set out in section 7.
To the extent appropriate, a court interpreting or applying this Act may consider foreign company law.
including the day on or by which the second event is to occur; and excluding any public holiday, Saturday or Sunday that falls on or between the days contemplated in paragraphs (a) and (b), respectively.
any applicable provisions of the- (aa) Auditing Profession Act; (bb) Labour Relations Act, 1995 (Act No.
Promotion of Access to Information Act, 2000 (Act No.
Promotion of Administrative Justice Act, 2000 (Act No.
Public Finance Management Act, 1999 (Act No.
Securities Services Act, 2004 (Act No. 36 of 2004); or prevail in the case of an inconsistency involving any of them, except to the extent provided otherwise in section 49(4); or 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 conï¬ict 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 be primarily or substantially intended to defeat or reduce the effect of a prohibition or requirement established by or in terms of an unalterable provision of this Act; and 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 purpose and policy served by the relevant prohibition or requirement; and the extent to which the agreement, transaction, arrangement, resolution or provision infringes or would infringe the relevant prohibition or requirement.
in plain language, if no form has been prescribed for that prospectus, notice, disclosure or document.
the vocabulary, usage and sentence structure of the prospectus, notice, disclosure or document; and 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 satisï¬es the requirements of subsection (4)(b).
An unaltered electronically or mechanically generated reproduction of any document, other than a share certiï¬cate, may be substituted for the original for any purpose for which the original could be used in terms of this Act.
negatively and materially affects the substance of the document, record, statement or notice; or is such that it would reasonably mislead a person reading the document, record, statement or notice.
materially reduces the probability that the intended recipient will receive the document, record, statement or notice; or is such as would reasonably mislead a person to whom the document, record, statement or notice is, or is to be, delivered.
If, in terms of this Act, a notice is required or permitted to be given or published to any person, it is sufficient if the notice is transmitted electronically directly to that person in a manner and form such that the notice can conveniently be printed by the recipient within a reasonable time and at a reasonable cost.
a notice of the availability of that document, record or statement, summarising its content and satisfying any prescribed requirements, is delivered to each intended recipient of the document, record or statement, together with instructions for receiving the complete document, record or statement.
all of those persons sign a single original of the document, in person or as contemplated in paragraph (a);or 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.
make regulations relating to the standards of operation, accessibility, technical requirements, service quality, and fees for the use of any system contemplated in subsection 13; and declare any system established or accredited by the Commission to be an acceptable mechanism for the ï¬ling of any particular document, in lieu of any other requirements set out in legislation relating to the ï¬ling of that document.
provide for the efficient rescue and recovery of ï¬nancially distressed companies, in a manner that balances the rights and interests of all relevant stakeholders; and 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 proï¬t companies and non-proï¬t companies.
it meets the criteria for a private company; and its Memorandum of Incorporation states that it is a personal liability company; or a public company, in any other case.
is formed pursuant to another law; or was formed pursuant to Letters Patent or Royal Charter before 31 May 1962.
Subject to section 5(4) and (5), any provision of this Act that applies to a public company applies also to a state-owned company, except to the extent that the Minister has granted an exemption in terms of subsection (3).
state-owned companies 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, any class of state-owned companies, or to one or more particular state-owned company; or 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.
only to the extent that the relevant alternative regulatory scheme ensures the achievement of the purposes of this Act at least as well as the provisions of this Act; and 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-proï¬t 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 proï¬t companies.
Part E of Chapter 2-Securities registration and transfer.
Parts B and D of Chapter 3-Company secretaries, and audit committees, except to the extent contemplated in section 34(2).
Chapter 4-Public offerings of company securities.
Chapter 5-Takeovers, offers and fundamental transactions.
Sections 146(d), and 152(3)(c)-Rights of shareholders to approve a business rescue plan, except to the extent that the non-proï¬t company is itself a shareholder of a proï¬t company engaged in business rescue proceedings.
Section 164-Dissenting shareholders' appraisal rights, except to the extent that the non-proï¬t company is itself a shareholder of a proï¬t company.
apply to a non-proï¬t company only if the company has voting members; and when applied to a non-proï¬t company, are subject to the provisions of item 4 of Schedule 1.
With respect to a non-proï¬t 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-proï¬t company.
round brackets used in pairs to isolate any other part of the name, alone or in any combination; or in the case of a proï¬t company, may be the registration number of the company together with the relevant expressions required by subsection (3).
a name registered for the use of a person as a business name in terms of the Business Names Act, 1960 (Act No.
a registered trade mark belonging to a person other than the company, or a mark in respect of which an application has been ï¬led in the Republic for registration as a trade mark or a well-known trade mark as contemplated in section 35 of the Trade Marks Act, 1993 (Act No.
a mark, word or expression the use of which is restricted or protected in terms of the Merchandise Marks Act, 1941 (Act No.
advocacy of hatred based on race, ethnicity, gender or religion, or incitement to cause harm.
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-proï¬t company.
The Minister may prescribe additional commonly recognised symbols for use in company names as contemplated in subsection (1)(a)(iii).
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 ï¬ling an application together with the prescribed fee.
the name of a registered external company; or already reserved in terms of this section.
A name reservation continues for a period of six months from the date of the application, and may be extended by the Commission for good cause shown, on application by the person for whom the name is reserved together with the prescribed fee, for a period of 60 business days at a time.
A person for whom a name has been reserved in terms of subsection (2) may transfer that reservation to another person by ï¬ling a signed notice of the transfer together with the prescribed fee.
refusing to transfer a reserved name; or cancelling a name reservation.
selling access to names, or trading in or marketing reserved names; or 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 failure to show good cause for a reservation period to be extended; or 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.
register any name as a defensive name for a period of two years; or 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.
ï¬ling a Notice of Incorporation, in accordance with subsection (2).
ï¬led together with the prescribed fee; and 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 ï¬led by the company must include a prominent statement drawing attention to each such provision, and its location in the Memorandum of Incorporation.
the initial directors of the company, as set out in the Notice, are fewer than required by or in terms of section 66(2); or the Commission reasonably believes that any of the initial directors of the company, as set out in the Notice, are disqualiï¬ed in terms of section 69(8), and the remaining directors are fewer than required by or in terms of section 66(2).
the date, if any, stated by the incorporators in the Notice of Incorporation.
must take the steps set out in subsection (1)(b), using the company's registration number, followed by ''Inc.'', ''(Pty) Ltd'', ''Ltd.'
when the company ï¬les such an amended Notice of Incorporation, must- (aa) enter the company's amended name in the companies register; and (bb) issue and deliver to the company an amended registration certiï¬cate showing the amended name of the company.
all the requirements for the incorporation of the company have been complied with; and the company is incorporated under this Act as from the date, and the time, if any, stated in the certiï¬cate.
must be consistent with this Act; and is void to the extent that it contravenes, or is inconsistent with, this Act.
contain any special conditions applicable to the company, and any requirement for the amendment of any such condition in addition to the requirements set out in section 16; or prohibit the amendment of any particular provision of the Memorandum of Incorporation.
ï¬ling a copy of those rules.
on an interim basis from the time it takes effect until it is put to a vote at the next general shareholders meeting of the company; and on a permanent basis only if it has been ratiï¬ed by an ordinary resolution at the meeting contemplated in subparagraph (i).
If a rule that has been published in terms of subsection (3) is not subsequently ratiï¬ed as contemplated in subsection (4)(c), 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 at a shareholders meeting.
each director or prescribed officer of the company; or any other person serving the company as a member of the audit committee or as a member of a committee of the board, 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.
is adopted at a shareholders meeting, or in accordance with section 60, subject to subsection (3).
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 board of that company may amend its Memorandum of Incorporation in the manner contemplated in subsection (1)(c)(i)(aa); and the requirements of subsection (1)(c)(ii) do not apply to the company.
must be effected by a resolution of the company's board; and does not require a special resolution as contemplated in subsection (1)(c)(ii).
making any combination of alterations contemplated in this paragraph.
If a proï¬t company amends its Memorandum of Incorporation in such a manner that it no longer meets the criteria for its particular category of proï¬t company, the company must also amend its name at the same time by altering the ending expression as appropriate to reï¬ect the category of proï¬t company into which it now falls.
has substituted a new Memorandum, as contemplated in subsection (5)(a), the provisions of section 13 (2)(b), read with the changes required by the context, apply to the ï¬ling of the Notice of Amendment; or has altered the existing Memorandum, as contemplated in subsection (5)(b)- (aa) the company must include a copy of the amendment with the Notice of Amendment; and (bb) the Commission may require the company to ï¬le a full copy of its amended Memorandum of Incorporation within a reasonable time.
reserved in terms of section 12 for another person.
the date on, and time at, which the Commission accepts the ï¬ling of the Notice of Amendment; or the date, if any, set out in the Notice of Amendment.
ï¬ling a notice of the alteration.
The Commission, or a director or shareholder of a company, may apply to the Companies Tribunal for an administrative order setting aside the notice of an alteration published in terms of subsection (1), only on the grounds that the alteration exceeds the authority to correct a patent error or defect, as contemplated in that subsection.
At any time, a company that has ï¬led its Memorandum of Incorporation may ï¬le 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 company may ï¬le a consolidated revision of its Memorandum of Incorporation, as so altered or amended; or the Commission may require the company to ï¬le a consolidated revision of its Memorandum of Incorporation, as so altered or amended.
a sworn statement by a director of the company; or 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 translation ï¬led in terms of section 17(3); or a consolidated revision ï¬led in terms of section 17(5), unless the consolidated revision has subsequently been ratiï¬ed 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 conï¬ict 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.
If a company is a personal liability company the directors and past directors are jointly and severally liable, together with the company, for any debts and liabilities of the company as are or were contracted during their respective periods of office.
is accessible for inspection at an office of the company.
any provision of a company's Memorandum of Incorporation contemplated in section 15(2)(b) if the company's Notice of Incorporation or a Notice of Amendment has drawn attention to the provision, as contemplated in section 13(3); or the effect of subsection (3) on a personal liability company.
If a company has amended its Memorandum of Incorporation, the Memorandum of Incorporation as previously adopted by the company has no force or effect with respect to any right, cause of action or matter occurring or arising after the date on which the amendment took effect.
After a company has changed its name, any legal proceedings that might have been commenced or continued by or against the company under its former name may be commenced or continued by or against it under its new name.
the company and its shareholders, directors or prescribed officers; or the shareholders and directors or prescribed officers of the company, no person may rely on such limitation, restriction or qualiï¬cation to assert that an action contemplated in paragraph (a) is void.
If a company's Memorandum of Incorporation limits, restricts or qualiï¬es 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 qualiï¬cation, subject to subsection (3).
An action contemplated in subsection (2) may not be ratiï¬ed 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 take proceedings to restrain the company from doing anything inconsistent with this Act.
obtained those rights in good faith; and did not have actual knowledge of the limit, restriction or qualiï¬cation.
this Act; or a limitation, restriction or qualiï¬cation contemplated in this section, unless that action has been ratiï¬ed by the shareholders in terms of subsection (2).
A person dealing with a company in good faith, other than a director, prescribed officer or shareholder of the company, is entitled to presume that the company, in making any decision in the exercise of its powers, has complied with all of the formal and procedural requirements in terms of this Act, its Memorandum of Incorporation and any rules of the company unless, in the circumstances, the person knew or reasonably ought to have known of any failure by the company to comply with any such requirement.
Subsection (7) must be construed concurrently with, and not in substitution for, any relevant common law principle relating to the presumed validity of the actions of a company in the exercise of its powers.
A person may enter into a written agreement in the name of, or purport to act in the name of, or on behalf of, an entity that is contemplated to be incorporated in terms of this Act, but does not yet exist at the time.
the contemplated entity is not subsequently incorporated; or after being incorporated, the company rejects any part of such an agreement or action.
If, after its incorporation, a company enters into an agreement on the same terms as, or in substitution for, an agreement contemplated in subsection (1), the liability of a person under subsection (2) in respect of the substituted agreement is discharged.
Within three months after the date on which a company was incorporated the board of that company may completely, partially or conditionally ratify or reject any pre-incorporation contract or other action purported to have been made or done in its name or on its behalf, as contemplated in subsection (1).
If, within three months after the date on which a company was incorporated, the board has neither ratiï¬ed 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 ratiï¬ed that agreement or action.
the agreement is as enforceable against the company as if the company had been a party to the agreement when it was made; and the liability of a person under subsection (2) in respect of the ratiï¬ed 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 beneï¬t it has received, or is entitled to receive, in terms of the agreement or action.
carry on its business recklessly, with gross negligence, with intent to defraud any person or for any fraudulent purpose; or trade under insolvent circumstances.
If the Commission has reasonable grounds to believe that a company is engaging in conduct prohibited by subsection (1), 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), 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.
as an external non-proï¬t company if, within the jurisdiction in which it was incorporated, it meets legislative or deï¬nitional requirements that are comparable to the legislative or deï¬nitional requirements of a non-proï¬t company incorporated under this Act; or as an external proï¬t company, if, within the jurisdiction in which it was incorporated, it meets legislative or deï¬nitional requirements that are comparable to the legislative or deï¬nitional requirements of a proï¬t company incorporated under this Act.
securing or collecting any debt, or enforcing any mortgage or security interest.
acquiring any interest in any property; and entering into contracts of employment.
subsequently, by ï¬ling a notice of change of registered office, together with the prescribed fee.
ï¬ve business days after the date on which the notice was ï¬led.
enter the prescribed information concerning each external company in the register; and 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).
register as required by subsection (1) within 20 business days after receiving the notice; or if it fails to register within the time allowed in paragraph (a), to cease carrying on its business or activities within the Republic.
in written form, or other form or manner that allows that information to be converted into written form within a reasonable time; and for a period of seven years, or any longer period of time speciï¬ed in any other applicable public regulation, subject to subsection (2).
If a company has existed for a shorter time than contemplated in subsection (1)(b), the company is required to retain records for that shorter time.
of each such meeting; or on which each such resolution was adopted.
a securities register or its equivalent, as required by section 50; and the records required in terms of section 85, if that section applies to the company.
name and registration number of every other company or foreign company of which the person is a director, and in the case of a foreign company, the nationality of that company; and any other prescribed information.
before attaining majority, or by persons who have been adopted, married, divorced or widowed; or 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 not kept at or made accessible from the company's registered office, as contemplated in subsection (1); or are moved from one location to another.
by direct request made to the company in the prescribed manner, either in person or through an attorney or other personal representative designated in writing; or in accordance with the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000).
In addition to the information rights set out in subsection (1)(a), 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, as set out in Part 3 of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000).
The register of members and register of directors of a company, must, during business hours for reasonable periods be open to inspection by any member, free of charge and by any other person, upon payment for each inspection of an amount not more than R100,00.
the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000); or any other public regulation.
The Minister may make regulations respecting the exercise of the rights set out in this section.
fail to accommodate any reasonable request for access, or to unreasonably refuse access, to any record that a person has a right to inspect or copy in terms of this section; or to otherwise impede, interfere with, or attempt to frustrate, the reasonable exercise by any person of the rights set out in this section.
A company must have a ï¬nancial year, ending on a date set out in the company's Notice of Incorporation, subject to any change made in terms of subsection (4).
begins on the date that the incorporation of the company is registered, as stated in its registration certiï¬cate; and 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).
begins when the preceding ï¬nancial year ends; and ends on the ï¬rst anniversary of the date contemplated in paragraph (a), unless the ï¬nancial year end has been changed as contemplated in subsection (4).
the newly established ï¬nancial year end must be later than the date on which the notice is ï¬led; and the date as changed may not result in a ï¬nancial year ending more than 15 months after the end of the preceding ï¬nancial year.
Despite subsection (2)(b) or (3), the ï¬nancial year of a company that has changed the date contemplated in subsection (1) ends on the date as changed.
If, in a particular year, the ï¬nancial year of a company ends on a Saturday, Sunday or public holiday, that ï¬nancial year will be regarded to have ended on the next following business day.
The ï¬nancial year of the company is its annual accounting period.
as necessary to enable the company to satisfy its obligations in terms of this Act or any other law with respect to the preparation of ï¬nancial statements; and 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.
For greater certainty, the Commission may issue a compliance notice, as contemplated in section 171, to a company in respect of any failure by the company to comply with the requirements of this section, irrespective whether that failure constitutes an offence in terms of subsection (3).
the name, and professional designation, if any, of the individual who prepared, or supervised the preparation of, those statements.
false or misleading in any material respect; or incomplete in any material particular, subject only to subsection (3).
setting out the steps required to obtain a copy of the ï¬nancial statements that it summarises.
ï¬nancial reporting standards contemplated in this Part; or form and content requirements for summaries contemplated in subsection (3).
different categories of proï¬t companies.
the statements that it summarises do not comply with the requirements of subsection (1), or are materially false or misleading, as contemplated in subsection (2); or the summary does not comply with the requirements of subsection (3), or is materially false or misleading.
Each year, a company must prepare annual ï¬nancial statements within six months after the end of its ï¬nancial 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).
every person who is a holder of, or has a beneï¬cial interest in, any securities issued by the company is also a director of the company unless the company has only one director, and that director is a person contemplated in section 69(12).
be approved by the board and signed by an authorised director; and be presented to the ï¬rst shareholders meeting after the statements have been approved by the board.
the number and class of any securities issued to a director or person holding any prescribed office in the company, or to any person related to any of them, and the consideration received by the company for those securities; and details of service contracts of current directors and individuals who hold any prescribed office in the company.
as directors or prescribed officers of any other company within the same group of companies; or otherwise in connection with the carrying on of the affairs of the company or any other company within the same group of companies.
the interest actually charged to the borrower, if less.
the categories of any private companies that are required to have their respective annual ï¬nancial statements audited, as contemplated in subsection (2)(b)(i); and the manner, form and procedures for the conduct of an independent review other than an audit, as contemplated in subsection (2)(b)(ii)(bb), as well as the professional qualiï¬cations, if any, of persons who may conduct such reviews.
without demand to receive a notice of the publication of any annual ï¬nancial statements of the company required by this Act, setting out the steps required to obtain a copy of those statements; and on demand to receive without charge one copy of any annual ï¬nancial 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 ï¬ve business days after making a demand, to receive without charge, one copy of the most recent annual ï¬nancial statements of the company.
Trade unions must, through the Commission and under conditions as determined by the Commission, be given access to company ï¬nancial statements for purposes of initiating a business rescue process.
provide its full registered name or registration number to any person on demand; and 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 certiï¬cate 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 the name or registration number of a company in a manner likely to convey an impression that the person is acting or communicating on behalf of that company, unless the company has authorised that person to do so; or 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.
Every company must have its name and registration number mentioned in legible characters in all notices and other official publications of the company, including such notices and publications in electronic format as contemplated in the Electronic Communications and Transactions Act, and in all bills of exchange, promissory notes, cheques and orders for money or goods and in all letters, delivery notes, invoices, receipts and letters of credit of the company.
Contravention of subsection (1), (2), (3) or (4) is an offence.
A company, or incorporator, shareholder or director of a company, or a person acting with the authority or on behalf of the company, must not, by any act or omission, misrepresent to any person, in any way or to any degree, the true legal status of the company.
Despite section 19(2), if a person contravenes subsection (6), a court, on application by any person affected by that failure, may impose personal liability on any shareholder, director or incorporator of the company for any liability or obligation of the company, to the extent that the court determines to be just and equitable in the circumstances.
a copy of its annual ï¬nancial statements, if it is required to have such statements audited in terms of section 30(2)(a); and any other prescribed information.
Every external company must ï¬le 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 ï¬led 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.
In addition to complying with the requirements of this Part, a public company or state-owned company must also comply with the extended accountability requirements set out in Chapter 3.
A private company, personal liability company or non-proï¬t company is not required to comply with the extended accountability requirements set out in Chapter 3, except to the extent that the company's Memorandum of Incorporation provides otherwise.
A share issued by a company is movable property, transferable in any manner provided for or recognised by this Act or other legislation.
A share does not have a nominal or par value, subject to item 6 of Schedule 5.
A company may not issue shares to itself.
An authorised share of a company has no rights associated with it until it has been issued.
acquired by that company, as contemplated in section 48; or 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.
Despite the repeal of the Companies Act, 1973 (Act No.
the operation of subsection (5); and the regulations contemplated in item 6(3) of Schedule 5.
which must not be issued until the board of the company has determined the associated preferences, rights, limitations or other terms, as contemplated in subparagraph (ii).
an amendment of the Memorandum of Incorporation by special resolution of the shareholders; or the board of the company, in the manner contemplated in subsection (3), except to the extent that the Memorandum of Incorporation provides otherwise.
classify any unclassiï¬ed shares that have been authorised as contemplated in subsection (1)(c), but are not issued; or 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 ï¬le 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, except to the extent that the company's Memorandum of Incorporation provides otherwise.
those shares have a right to be voted on every matter that may be decided by shareholders of the company; and the holders of that class of shares are entitled to receive the net assets of the company upon its liquidation.
for each particular matter that may be submitted for a decision to shareholders of the company, at least one class of the company's shares has voting rights that may be exercised on that matter; and 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.
entitle the shareholders to distributions calculated in any manner, including dividends that may be cumulative, non-cumulative, or partially cumulative, subject to the requirements of sections 46 and 47; or provide for shares of that class to have preference over any other class of shares with respect to distributions, or rights upon the ï¬nal liquidation of the company.
The Memorandum of Incorporation of a company may provide for preferences, rights, limitations or other terms of any class of shares of that company to vary in response to any objectively ascertainable external fact or facts.
''external fact or facts'' includes the occurrence of any event, a variation in any fact, benchmark or other point of reference, a determination or action by the company, its board, or any other person, an agreement to which the company is a party, or any other document; and 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.
notiï¬ed the company in advance of the intention to oppose the resolution to amend the Memorandum of Incorporation; and was present at the meeting, and voted against that resolution.
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.
that have not been authorised in accordance with section 36; or 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.
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 nulliï¬ed, together with interest in accordance with the Prescribed Rate of Interest Act, 1975 (Act No.
was present at a meeting when the board approved the issue of any unauthorised shares, or participated in the making of such a decision in terms of section 74; and failed to vote against the issue of those shares, despite knowing that the shares had not been authorised in accordance with section 36.
as contemplated in section 40(5) to (7); or 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.
in exercising a right in terms of subsection (2), a shareholder may subscribe fewer shares than the shareholder would be entitled to subscribe under that subsection; and shares not subscribed 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.
in terms of conversion rights associated with previously issued securities of the company; or as a capitalisation share as contemplated in section 47.
Before a company issues any particular shares, the board must determine the consideration for which, and the terms on which, those shares will be issued.
A determination by the board of a company in terms of subsection (2) as to the adequacy of consideration for any shares may not be challenged on any basis other than in terms of section 76, read with section 77(2).
those shares are fully paid; and 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.
issue the shares immediately; and 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 fulï¬l its obligations under the agreement, must be returned to the company and cancelled, on demand by the company.
a negotiable instrument is dishonoured after becoming negotiable by the company; or in the case of an agreement, the subscribing party has failed to fulï¬l 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 fulï¬lled.
person related or inter-related to the company, or to a director or prescribed officer of the company; or nominee of a person contemplated in paragraph (a) or (b).
pursuant to an employee share scheme that satisï¬es the requirements of section 97; or pursuant to an offer to the public, as deï¬ned 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% 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.
was present at a meeting when the board approved the issue of any securities as contemplated in this section, or participated in the making of such a decision in terms of section 74; and 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.
A company may issue options for the allotment or subscription of authorised shares or other securities of the company.
any options are issued; and the related shares or other securities are to be issued.
any options, constitutes also the decision of the board to issue any authorised shares or other securities for which the options may be exercised; or 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.
for which the options could be exercised; or 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 certiï¬cate.
may authorise the company to issue a secured or unsecured debt instrument at any time, except to the extent provided by that the company's Memorandum of Incorporation; and must determine whether each such debt instrument is secured or unsecured.
attending and voting at general meetings and the appointment of directors; or 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 ï¬rst page, whether the relevant debt instrument is secured or unsecured.
is not a director or prescribed officer of the company, or a person related or inter-related to the company, a director or a prescribed officer; and does not have any interest in, or relationship with, the company that might conï¬ict with the duties of a trustee; and the board is satisï¬ed that the person has the requisite knowledge and experience to carry out the duties of a trustee.
satisfy the requirements of subsection (5)(a); and be approved by the holders of at least 75% by value of debt instruments present at a meeting called for that purpose.
Any provision contained in a trust deed for securing any debt instruments, or in any agreement with the holders of any debt instruments secured by a trust deed, is void to the extent that it would exempt a trustee from, or indemnify a trustee against, liability for breach of trust, or failure to exercise the degree of care and diligence required of the prudent and careful person, having regard to the provisions of the trust deed respecting the powers, authorities or discretions of the trustee.
enabling a release to be given with the consent of the majority of not less than three fourths in value of the holders of debt instruments present and voting at a meeting called for the purpose; and with respect to a speciï¬c act or omission, or of the trustee dying or ceasing to act.
In this section, ''ï¬nancial assistance'' does not include lending money in the ordinary course of business by a company whose primary business is the lending of money.
To the extent that the Memorandum of Incorporation of a company provides otherwise, the board may authorise the company to provide ï¬nancial 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).
immediately after providing the ï¬nancial assistance, the company would satisfy the solvency and liquidity test; and the terms under which the ï¬nancial 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 ï¬nancial assistance set out in the company's Memorandum of Incorporation have been satisï¬ed.
this section; or a prohibition, condition or requirement contemplated in subsection (4).
was present at the meeting when the board approved the resolution or agreement, or participated in the making of such a decision in terms of section 74; and failed to vote against the resolution or agreement, despite knowing that the provision of ï¬nancial 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 ï¬nancial 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).
pursuant to an employee share scheme that satisï¬es the requirements of section 97; or pursuant to a special resolution of the shareholders, adopted within the previous two years, which approved such assistance either for the speciï¬c recipient, or generally for a category of potential recipients, and the speciï¬c recipient falls within that category; and the board is satisï¬ed that immediately after providing the ï¬nancial assistance, the company would satisfy the solvency and liquidity test.
within 10 business days after the board adopts the resolution, if the total value of all loans, debts, obligations or assistance contemplated in that resolution, together with any previous such resolution during the ï¬nancial year, exceeds one-tenth of 1% of the company's net worth at the time of the resolution; or within 30 business days after the end of the ï¬nancial year, in any other case.
it reasonably appears that the company will satisfy the solvency and liquidity test immediately after completing the proposed distribution; and 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.
When the board of a company has adopted a resolution contemplated in subsection (1)(c), the relevant distribution must be fully carried out, subject only to subsection (3).
the board must reconsider the solvency and liquidity test with respect to the remaining distribution to be made pursuant to the original resolution, order or obligation; and 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).
apply at the time that the board resolves that the company may incur that debt or obligation; and 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.
is just and equitable, having regard to the ï¬nancial circumstances of the company; and 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 ï¬nancial obligations as they fall due and payable.
was present at the meeting when the board approved a distribution as contemplated in this section, or participated in the making of such a decision in terms of section 74; and failed to vote against the distribution, despite knowing that the distribution was contrary to this section.
shares of one class may be issued as a capitalisation share in respect of shares of another class; and 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.
has considered the solvency and liquidity test, as required by section 46, on the assumption that every such shareholder would elect to receive cash; and is satisï¬ed that the company would satisfy the solvency and liquidity test immediately upon the completion of the distribution.
The making of a demand, tendering of shares and payment by a company to a shareholder in terms of a shareholder's appraisal rights set out in section 164 do not constitute an acquisition of its shares by the company within the meaning of this section.
not more than 10%, in aggregate, of the number of issued shares of any class of shares of a company may be held by, or for the beneï¬t of, all of the subsidiaries of that company, taken together; and no voting rights attached to those shares may be exercised while the shares are held by the subsidiary, and it remains a subsidiary of the company whose shares it holds.
shares held by one or more subsidiaries of the company; or convertible or redeemable shares.
An agreement with a company providing for the acquisition by the company of shares issued by it is enforceable against the company, subject to subsections (2) and (3).
is just and equitable, having regard to the ï¬nancial circumstances of the company; and 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 ï¬nancial obligations as they fall due and payable.
the person from whom the shares were acquired to return the amount paid by the company; and the company to issue to that person an equivalent number of shares of the same class as those acquired.
was present at the meeting when the board approved an acquisition of shares contemplated in this section, or participated in the making of such a decision in terms of section 74; and failed to vote against the acquisition of shares, despite knowing that the acquisition was contrary to this section or section 46.
In this Part, ''certiï¬cated'' means evidenced by a certiï¬cate, as contemplated in subsection (2)(a).
uncertiï¬cated, in which case the company must not issue certiï¬cates evidencing or purporting to evidence title to those securities, subject to subsection (6).
the rights and obligations of security holders are not different solely on the basis of their respective securities being certiï¬cated or uncertiï¬cated; and any provision of this Act applies with respect to any uncertiï¬cated securities in the same manner as it applies to certiï¬cated securities.
apply only to uncertiï¬cated securities; and prevail in the case of a conï¬ict 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 certiï¬cated securities may cease to be evidenced by certiï¬cates, and thereafter be uncertiï¬cated, 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 certiï¬cates.
sections 52 to 55 cease to apply to those securities; and for greater certainty, transfer of ownership in those securities cannot be effected by a participant or central securities depository while they remain in certiï¬cated form.
The Minister may make regulations regarding matters that are supplementary and ancillary to the provisions of this Part.
maintain its securities register in accordance with the prescribed standards.
referred to in subsection (2)(b), read with the changes required by the context; or determined by the rules of the central securities depository.
A securities register, or an uncertiï¬cated 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.
must be signed by two persons authorised by the company's board; and 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 certiï¬cate by autographic, mechanical or electronic means.
A certiï¬cate remains valid despite the subsequent departure from office of any person who signed it.
each certiï¬cate issued in respect of those shares must be distinguished by a numbering system; and if the share has been transferred, the certiï¬cate must be endorsed with a reference number or similar device that will enable each preceding holder of the share in succession to be identiï¬ed.
the date of the transfer; and 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).
is evidenced by a proper instrument of transfer that has been delivered to the company; or 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 uncertiï¬cated securities reï¬ected in the uncertiï¬cated securities register.
through the relevant company in terms of section 26; and in accordance with the rules of the central securities depository.
Within ï¬ve business days after the date of a request for inspection, a company must produce a record of the uncertiï¬cated securities register, which record must reï¬ect 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.
must not impose a charge for a statement on the person entitled to the statement; and may impose a charge or service fee for such a statement on the relevant company in accordance with the regulations.
The regulations contemplated in section 49(7) may provide for a charge or service fee for statements contemplated in subsection (4)(c).
an instruction to transfer sent and properly authenticated in terms of the rules of a central securities depository; or an order of a court; and in accordance with this section and the rules of the central securities depository.
debiting the account in the uncertiï¬cated securities register from which the transfer is effected; and crediting the account in the uncertiï¬cated 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 uncertiï¬cated securities.
affect the relevant uncertiï¬cated securities; or 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 a uncertiï¬cated 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 uncertiï¬cated securities of a company has been transmitted by operation of law.
notify the relevant company to provide the requested certiï¬cate; and remove the details of the uncertiï¬cated securities from the uncertiï¬cated securities register.
prepare and deliver to the relevant person a certiï¬cate in respect of the securities; and notify the central securities depository that the securities are no longer held in uncertiï¬cated form.
A company may charge a holder of its securities a reasonable fee to cover the actual costs of issuing a certiï¬cate, as contemplated in this section.
the number of uncertiï¬cated securities is increased, reduced, or remains unaltered; or the description of any uncertiï¬cated securities is changed, is liable to any person who has suffered any direct loss or damage arising out of that action.
warrant the legality and correctness of that instruction; and 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.
a company against any claim made upon it and against any direct loss or damage suffered by it arising out of a transfer of any uncertiï¬cated securities; and any other person against any direct loss or damage arising out of a transfer of any uncertiï¬cated 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 beneï¬cial interest of another person.
is entitled to exercise or control the exercise of the majority of the voting rights at general meetings of a juristic person that has a beneï¬cial interest in that security; or gives directions or instructions to a juristic person that has a beneï¬cial 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 the person on whose behalf that security is held; and the number and class of securities held for each such person with a beneï¬cial interest.
be disclosed in writing to the company within ï¬ve business days after the end of every month; and otherwise be provided on payment of a prescribed fee charged by the registered holder of securities.
provide particulars of the extent of the beneï¬cial interest held during the three years preceding the date of the notice; and disclose the identity of each person with a beneï¬cial interest in the securities held by that person.
The information required in terms of subsection (5) must be provided not later than 10 business days after receipt of the notice.
establish and maintain a register of the disclosures made in terms of this section; and publish in its annual ï¬nancial statements, if it is required to have such statements audited in terms of section 30(2), a list of the persons who hold beneï¬cial interests equal to or in excess of 5% of the total number of securities of that class issued by the company, together with the extent of those beneï¬cial interests.
In this Part, ''shareholder'' means 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.
that shareholder may exercise any or all of the voting rights pertaining to that company on any matter, at any time, without notice or compliance with any other internal formalities, except to the extent that the company's Memorandum of Incorporation provides otherwise; and sections 59 to 65 do not apply to the governance of that company.
that director may exercise any power or perform any function of the board at any time, without notice or compliance with any other internal formalities, except to the extent that the company's Memorandum of Incorporation provides otherwise; and sections 71(3) to (7), 73 and 74 do not apply to the governance of that company.
a resolution adopted by those persons in their capacity as shareholders has at least the support that would have been required for it to be adopted as an ordinary or special resolution, as the case may be, at a properly constituted shareholder's meeting; and 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 indemniï¬cation of directors.
The board of a company that holds any securities of a second company may authorise any person to act as its representative at any shareholders meeting of that second company.
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.
participate in, and speak and vote at, a shareholders meeting on behalf of the shareholder; or give or withhold written consent on behalf of the shareholder to a decision contemplated in section 60, provided that the shareholder may appoint more than one proxy to exercise voting rights attached to different shares held by the shareholder.
one year after the date on which it was signed; or 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 proxy may delegate the proxy's authority to act on behalf of the shareholder to another person, subject to any restriction set out in the instrument appointing the proxy; and 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.
cancelling it in writing, or making a later inconsistent appointment of a proxy; and delivering a copy of the revocation instrument to the proxy, and to the company.
the date stated in the revocation instrument, if any; or the date on which the revocation instrument was delivered as required in subsection (4)(c)(ii).
directed the company to do so, in writing; and paid any reasonable fee charged by the company for doing so.
A proxy is entitled to exercise, or abstain from exercising, any voting right of the shareholder without direction, except to the extent that the Memorandum of Incorporation, or the instrument appointing the proxy, provides otherwise.
the company must not require that the proxy appointment be made irrevocable; and the proxy appointment remains valid only until the end of the meeting at which it was intended to be used, subject to subsection (5).
Subsection (8)(b) and (d) do not apply if the company merely supplies a generally available standard form of proxy appointment on request by a shareholder.
receive a distribution; or be allotted or exercise other rights.
earlier than the date on which the record date is determined; or more than 10 business days before the date on which the event or action, for which the record date is being set, is scheduled to occur; and must be published to the shareholders in a manner that satisï¬es any prescribed requirements.
in the case of a meeting, the latest date by which the company is required to give shareholders notice of that meeting; or the date of the action or event, in any other case, unless the Memorandum of Incorporation or rules of the company provide otherwise.
submitted for consideration to the shareholders entitled to exercise voting rights in relation to the resolution; and 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.
will have been adopted if it is supported by persons entitled to exercise sufficient voting rights for it to have been adopted as an ordinary or special resolution, as the case may be, at a properly constituted shareholders meeting; and if adopted, has the same effect as if it had been approved by voting at a meeting.
An election of a director that could be conducted at a shareholders meeting may instead be conducted by written polling of all of the shareholders entitled to exercise voting rights in relation to the election of that director.
Within 10 business days after adopting a resolution, or conducting an election of directors, in terms of this section, the company must deliver a statement describing the results of the vote, consent process, or election to every shareholder who was entitled to vote on or consent to the resolution, or vote in the election of the director, as the case may be.
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 speciï¬ed in the company's Memorandum of Incorporation or rules, may call a shareholders meeting at any time.
in terms of subsection (3) or (7); or by the company's Memorandum of Incorporation.
each such demand describes the speciï¬c purpose for which the meeting is proposed; and in aggregate, demands for substantially the same purpose are made and signed by the holders, as the earliest time speciï¬ed 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).
A company, or any shareholder of the company, may apply to a court for an order setting aside a demand made in terms of subsection (3) on the grounds that the demand is frivolous, calls for a meeting for no other purpose than to reconsider a matter that has already been decided by the shareholders, or is otherwise vexatious.
a shareholder who submitted a demand for that meeting may withdraw that demand; and 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.
initially, no more than 18 months after the company's date of incorporation; and 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.
an auditor for the ensuing ï¬nancial year; and an audit committee; and any matters raised by shareholders, with or without advance notice to the company.
the board of the company may determine the location for any shareholders meeting of the company; and a shareholders meeting of the company may be held in the Republic or in any foreign country.
Every shareholders meeting of a public company must be reasonably accessible within the Republic for electronic participation by shareholders in the manner contemplated in section 63(2), irrespective of whether the meeting is held in the Republic or elsewhere.
any other person authorised by the company's Memorandum of Incorporation may convene the meeting; or 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.
when required by shareholders in terms of subsection (3); or 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.
The company must compensate a shareholder who applies to the Companies Tribunal in terms of subsection (11), or to a court in terms of subsection (12), respectively, for the costs of those proceedings.
Any failure to hold a meeting as required by this section does not affect the existence of a company, or the validity of any action by the company.
10 business days before the meeting is to begin, in any other case.
A company's Memorandum of Incorporation may provide for longer minimum notice periods than required by subsection (1).
section 63(1) requires that meeting participants provide satisfactory identiï¬cation.
waive notice of the meeting; or in the case of a material defect in the manner and form of giving notice, ratify the defective notice.
any such matter may be severed from the agenda, and the notice remains valid with respect to any remaining matters on the agenda; and the meeting may proceed to consider a severed matter, if the defective notice in respect of that matter has been ratiï¬ed in terms of subsection (4)(d).
An immaterial defect in the form or manner of giving notice of a shareholders meeting, or an accidental or inadvertent failure in the delivery of the notice to any particular shareholder to whom it was addressed, does not invalidate any action taken at the meeting.
allege a material defect in the form of notice for a particular item on the agenda for the meeting; and participate in the determination whether to waive the requirements for notice, or ratify a defective notice; and except to the extent set out in paragraph (b), is regarded to have waived any right based on an actual or alleged material defect in the notice of the meeting.
that person must present reasonably satisfactory identiï¬cation; and the person presiding at the meeting must be reasonably satisï¬ed that the right of that person to participate and vote, either as a shareholder, or as a proxy for a shareholder, has been reasonably veriï¬ed.
a shareholders meeting to be conducted entirely by electronic communication; or 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, so 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.
the notice of that meeting must inform shareholders of the availability of that form of participation, and provide any necessary information to enable shareholders or their proxies to access the available medium or means of electronic communication; and 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.
Any person present and entitled to exercise voting rights must on a show of hands have only one vote, irrespective of the number of shares he or she holds or represents.
On a poll at any meeting of a company, any member including his or her proxy, must be entitled to exercise all the voting rights attached to the shares held or represented by that person.
a shareholders meeting may not begin until sufficient persons are present at the meeting to exercise, in aggregate, at least 25% of all of the voting rights that are entitled to be exercised in respect of at least one matter to be decided at the meeting; and 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% 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% required in either or both of subsection (1)(a) or (b).
at least three shareholders are present at the meeting; and the requirements of subsection (1) or the Memorandum of Incorporation, if different, are satisï¬ed.
if there is other business on the agenda of the meeting, consideration of that matter may be postponed to a later time in the meeting without motion or vote; or if there is no other business on the agenda of the meeting, the meeting is adjourned for one week, without motion or vote.
exceptional circumstances affecting weather, transportation or electronic communication have generally impeded or are generally impeding the ability of shareholders to be present at the meeting; or 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 hour contemplated in subsections (4) and (5), respectively; or the period of one week contemplated in subsection (4).
the location of the postponed or adjourned meeting; or a location announced at the time of adjournment, in the case of an adjourned meeting.
If, at the time appointed in terms of this section for a postponed meeting to begin, or for an adjourned meeting to resume, the requirements of subsection (1), or (3) if applicable, have not been satisï¬ed, the members of the company present in person or by proxy will be deemed to constitute a quorum.
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.
held by all of the persons who are present at the meeting at the time; and 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.
to a ï¬xed time and place; or until further notice, as agreed at the meeting; and 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 120 business days after the record date determined in accordance with section 59; or 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.
Every resolution of shareholders is either an ordinary resolution or a special resolution.
The board may propose any resolution to be considered by shareholders, and may determine whether that resolution will be considered at a meeting, or by vote or written consent in terms of section 60.
by written vote in terms of section 60.
expressed with sufficient clarity and speciï¬city; and 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 inï¬uence the outcome of the vote on the resolution.
take appropriate steps to alter the resolution so that it satisï¬es the requirements of subsection (4); and compensate the applicant for costs of the proceedings, if successful.
Once a resolution has been approved, it may not be challenged or impugned by any person in any forum on the grounds that it did not satisfy subsection (4).
For an ordinary resolution to be approved by shareholders, it must be supported by more than 50% of the voting rights exercised on the resolution.
a higher percentage of voting rights to approve an ordinary resolution; or 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 requirements for approval of an ordinary resolution, and a special resolution, on any matter.
For a special resolution to be approved by shareholders, it must be supported by at least 75% of the voting rights exercised on the resolution.
a lower percentage of voting rights to approve any special resolution; or one or more lower percentages of voting rights to approve special 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 requirements for approval of an ordinary resolution, and a special resolution, on any matter.
approve the voluntary winding-up of the company, as contemplated in section 80(1); or approve any proposed fundamental transaction, to the extent required by Part A of Chapter 5.
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 the case of a private company, or a personal liability company, at least one director; or in the case of a public company, or a non-proï¬t company, at least three directors.
A company's Memorandum of Incorporation may specify a higher number in substitution for the minimum number of directors required by subsection (2).
the appointment or election of one or more persons as alternate directors of the company; and in the case of a proï¬t company other than a state-owned company, must provide for the election by shareholders of at least 50% of the directors, and 50% of any alternate directors.
powers and functions of any other director of the company, except to the extent that the company's Memorandum of Incorporation restricts the powers, functions or duties of an ex offÄ±cio director; and duties, and is subject to all of the liabilities, of any other director of the company.
has been appointed or elected in accordance with this Part, or holds an office, title, designation or similar status entitling that person to be an ex offÄ±cio director of the company, subject to subsection (5)(a); and has delivered to the company a written consent to serve as its director.
Except to the extent that the Memorandum of Incorporation of a company provides otherwise, the company may pay remuneration to its directors for their service as directors, subject to subsection (9).
Remuneration contemplated in subsection (8) may be paid only in accordance with a special resolution approved by the shareholders within the previous two years.
The Minister may make regulations designating any speciï¬c 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.
ï¬rst 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 offÄ±cio 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 ï¬ll all vacancies on the board at the time of the election.
Subject to subsection (3), each director of a company, other than the ï¬rst directors 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 indeï¬nite term, or for a term as set out in the Memorandum of Incorporation.
each voting right entitled to be exercised may be exercised once; and the vacancy is ï¬lled only if a majority of the voting rights exercised support the candidate.
Unless the Memorandum of Incorporation of a company provides otherwise, the board may appoint a person who satisï¬es the requirements for election as a director to ï¬ll any vacancy and serve as a director of the company on a temporary basis until the vacancy has been ï¬lled 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.
a prescribed officer; or 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.
be appointed or elected as a director of a company, or consent to being appointed or elected as a director; or act as a director of a company.
A company must not knowingly permit an ineligible or disqualiï¬ed person to serve or act as a director.
A person who becomes ineligible or disqualiï¬ed while serving as a director of a company ceases to be a director immediately, subject to section 70(2).
A person who has been placed under probation by a court in terms of section 162, or in terms of section 47 of the Close Corporations Act, 1984 (Act No. 69 of 1984), must not serve as a director except to the extent permitted by the order of probation.
additional grounds of ineligibility or disqualiï¬cation of directors; or minimum qualiï¬cations to be met by directors of that company.
is an unemancipated minor, or is under a similar legal disability; or does not satisfy any qualiï¬cation set out in the company's Memorandum of Incorporation.
a court has prohibited that person to be a director, or declared the person to be delinquent in terms of section 162, or in terms of section 47 of the Close Corporations Act, 1984 (Act No.
under this Act, the Insolvency Act, 1936 (Act No. 24 of 1936), the Close Corporations Act, 1984, the Competition Act, the Financial Intelligence Centre Act, 2001 (Act No. 38 of 2001), the Securities Services Act, 2004 (Act No. 36 of 2004), or Chapter 2 of the Prevention and Combating of Corruption Activities Act, 2004 (Act No. 12 of 2004).
ï¬ve years after the date of removal from office, or the completion of the sentence imposed for the relevant offence, as the case may be; or 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 Commission may apply to a court for an extension contemplated in subsection (9)(b); and the court may extend the disqualiï¬cation for no more than ï¬ve years at a time, if the court is satisï¬ed that an extension is necessary to protect the public, having regard to the conduct of the disqualiï¬ed person up to the time of the application.
A court may exempt a person from the application of any provision of subsection (8)(b).
persons related to that disqualiï¬ed person, and each such person has consented in writing to that person being a director of the company.
The Commission must establish and maintain in the prescribed manner a public register of persons who are disqualiï¬ed 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.
by order of the court in terms of section 71(5) or (6).
the expiry of the time for ï¬ling an application for review in terms of section 71(5); or the granting of an order by the court on such an application, but the director is suspended from office during that time.
by a poll of the persons entitled to exercise voting rights in an election of the director, as contemplated in section 60(3).
If, as a result of a vacancy arising on the board of a company there are no remaining directors of a company, any holder of voting rights entitled to be exercised in the election of a director may convene a meeting for the purpose of such an election.
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 satisï¬ed that such an order is required to prevent the oppression, or preserve the rights, of any shareholder.
Every company must ï¬le 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 concerned must be given notice of the meeting and the resolution, at least equivalent to that which a shareholder is entitled to receive, irrespective of whether or not the director is a shareholder of the company; and 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.
ineligible or disqualiï¬ed in terms of section 69, other than on the grounds contemplated in section 69(8)(a);or incapacitated to the extent that the director is unable to perform the functions of a director, and is unlikely to regain that capacity within a reasonable time; or 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 disqualiï¬ed, incapacitated, or negligent or derelict, as the case may be.
notice of the meeting, including a copy of the proposed resolution and a statement setting out reasons for the resolution, with sufficient speciï¬city to reasonably permit the director to prepare and present a response; and 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 disqualiï¬ed, 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.
conï¬rm the determination of the board; or remove the director from office, if the court is satisï¬ed that the director is ineligible or disqualiï¬ed, incapacitated, or has been negligent or derelict.
An applicant in terms of subsection (6) must compensate the company, and any other party, for costs incurred in relation to the application, unless the court reverses the decision of the board.
in any circumstances contemplated in subsection (3), any director or shareholder of the company may apply to the Companies Tribunal, to make a determination contemplated in that subsection; and 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 office as a director; or loss of any other office as a consequence of being removed as a director.
This section is in addition to the right of a person, in terms of section 162, to apply to a court for an order declaring a director delinquent, or placing a director on probation.
appoint any number of committees of directors; and delegate to any committee any of the authority of the board.
may consult with or receive advice from any person; and has the full authority of the board in respect of a matter referred to it.
The creation of a committee, delegation of any power to a committee, or action taken by a committee, does not alone satisfy or constitute compliance by a director with the required duty of a director to the company, as set out in section 76.
the size of its workforce; or the nature and extent of its activities.
25% of the directors, in the case of a board that has at least 12 members; or 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).
a meeting of the board may be conducted by electronic communication; or one or more directors may participate in a meeting by electronic communi cation, 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.
such a determination must comply with any requirements set out in the Memorandum of Incorporation, or rules, of the company; and no meeting of a board may be convened without notice to all of the directors, subject to subsection (5).
the chair may cast a deciding vote, if the chair did not initially have or cast a vote; or the matter being voted on fails, in any other case.
any declaration given by notice or made by a director as required by section 75; and every resolution adopted by the board.
must be dated and sequentially numbered; and are effective as of the date of the resolution, unless the resolution states otherwise.
Any minutes of a meeting, or a resolution, signed by the chair of the meeting, or by the chair of the next meeting of the board, is evidence of the proceedings of that meeting, or adoption of that resolution, as the case may be.
Except to the extent that the Memorandum of Incorporation of a company provides otherwise, a decision that could be voted on at a meeting of the board of that company may instead be adopted by written consent of a majority of the directors, given in person, or by electronic communication, provided that each director has received notice of the matter to be decided.
A decision made in the manner contemplated in this section is of the same effect as if it had been approved by voting at a meeting.
holds all of the beneï¬cial interests of all of the issued securities of the company; and is the only director of that company.
approve or enter into any agreement in which the person or a related person has a personal ï¬nancial interest; or as a director, determine any other matter in which the person or a related person has a personal ï¬nancial 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 ï¬nancial 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.
is to be regarded as being present at the meeting for the purpose of determining whether sufficient directors are present to constitute the meeting; and is not to be regarded as being present at the meeting for the purpose of determining whether a resolution has sufficient support to be adopted; and must not execute any document on behalf of the company in relation to the matter unless speciï¬cally requested or directed to do so by the board.
If a director of a company acquires a personal ï¬nancial 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 ï¬nancial 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.
was approved in the manner contemplated in this section; or has been ratiï¬ed by an ordinary resolution of the shareholders.
A court, on application by any interested person, may declare valid a transaction or agreement that had been approved by the board, or shareholders as the case may be, despite the failure of the director to satisfy the requirements of this section.
reasonably believes that the information is- (aa) immaterial to the company; or (bb) generally available to the public, or known to the other directors; or is bound not to disclose that information by a legal or ethical obligation of conï¬dentiality.
carrying out the same functions in relation to the company as those carried out by that director; and having the general knowledge, skill and experience of that director.
any information, opinions, recommendations, reports or statements, including ï¬nancial statements and other ï¬nancial data, prepared or presented by any of the persons speciï¬ed in subsection (5).
within the particular person's professional or expert competence; or as to which the particular person merits conï¬dence; or 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 conï¬dence.
any provision of the company's Memorandum of Incorporation.
an allotment by the company, despite knowing that the allotment was contrary to any provision of Chapter 4, to the extent that the allotment or an acceptance is declared void under section 109(1) read with section 218(1).
the amount by which the value of the distribution exceeded the amount that could have been distributed without causing the company to fail to satisfy the solvency and liquidity test; and 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 indemniï¬cation for the costs of the proceedings under this subsection.
The liability of a person in terms of this section is joint and several with any other person who is or may be held liable for the same act.
Proceedings to recover any loss, damages or costs for which a person is or may be held liable in terms of this section may not be commenced more than three years after the act or omission that gave rise to that liability.
to pay the costs of all parties in the court in a proceeding contemplated in this section unless the proceedings are abandoned, or exculpate that person; and 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.
the director is or may be liable, but has acted honestly and reasonably; or 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.
A director who has reason to apprehend that a claim may be made alleging that the director is liable, other than for wilful misconduct or wilful breach of trust, may apply to a court for relief, and the court may grant relief to the director on the same grounds as if the matter had come before the court in terms of subsection (9).
a duty contemplated in section 75 or 76; or liability contemplated in section 77; or 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.
A company may not directly or indirectly pay any ï¬ne that may be imposed on the director of the company, or of a related company, who has been convicted of an offence in terms of any national legislation.
are abandoned or exculpate the director; or arise in respect of any liability for which the company may indemnify the director, in terms of subsections (5) and (6).
Except to the extent that the Memorandum of Incorporation of a company provides otherwise, a company may indemnify a director in respect of any liability arising other than as contemplated in subsection (6).
in terms of section 77(3)(a), (b) or (c);or from willful misconduct or willful breach of trust on the part of the director; or any ï¬ne contemplated in subsection (3).
any liability for which the company is permitted to indemnify a director in accordance with subsection (5).
A company is entitled to claim restitution from a director of the company or of a related company for any money paid directly or indirectly by the company to or on behalf of that director in any manner inconsistent with this section.
by the company; or by the company's creditors, as determined by the resolution of the company; or winding-up and liquidation by court order, as contemplated in section 81.
The procedures for winding-up and liquidation of a solvent company, whether voluntary or by court order, are governed by this Part and, to the extent applicable, by the laws referred to or contemplated in item 9 of Schedule 5.
If, at any time after a company has adopted a resolution contemplated in section 80, or after an application has been made to a court as contemplated in section 81, it is determined that the company to be wound up is or may be insolvent, a court, on application by any interested person, may order that the company be wound up as an insolvent company in terms of the laws referred to or contemplated in item 9 of Schedule 5.
A solvent company may be wound up voluntarily if the company has adopted a special resolution to do so, which may provide for the winding-up to be by the company, or by its creditors.
A resolution providing for the voluntary winding-up of a company must be ï¬led, together with the prescribed notice and ï¬ling fee.
a sworn statement by a director authorised by the board of the company, stating that the company has no debts; and a certiï¬cate 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 ï¬nancial records of the company, the company appears to have no debts.
Any costs incurred in furnishing the security referred to in subsection (3) may be paid by the company.
the shareholders of the company in a general meeting, in the case of a winding-up by the company; or 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 ï¬led in terms of subsection (2).
When a resolution has been ï¬led in terms of subsection (2), the Commission must promptly deliver a copy of it to the Master.
it must stop carrying on its business except to the extent required for the beneï¬cial winding-up of the company; and all of the powers of the company's directors cease, except to the extent speciï¬cally authorised- (aa) in the case of a winding-up by the company, by the liquidator or the shareholders in a general meeting; or (bb) in the case of a winding-up by creditors, the liquidator or the creditors.
the company, its directors or prescribed officers or other persons in control of the company are acting or have acted in a manner that is fraudulent or otherwise illegal, the Commission or Panel, as the case may be, has issued a compliance notice in respect of that conduct, and the company has failed to comply with that compliance notice; and within the previous ï¬ve 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 ï¬ne, or conviction for an offence.
acquiring another shareholder; or the distribution of the estate of a former shareholder, and the present shareholder, and other or former shareholder, in aggregate, satisï¬ed the requirements of paragraph (a).
any of the directors have resigned, or have been removed in terms of section 71, and the court concludes that the remaining directors were not materially implicated in the conduct on which the application was based; or 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 satisï¬ed that the removal of those directors would bring the misconduct to an end.
an application has been made to the court in terms of subsection (1)(a) or (b); or the court has made an order applied for in terms of subsection (1)(c), (d), (e) or (f).
When the affairs of a company have been completely wound up, and a court order of ï¬nal liquidation has been made, the Master must promptly ï¬le a certiï¬cate to that effect, together with a copy of the court order.
record the dissolution of the company in the prescribed manner; and remove the company's name from the companies register.
has determined in the prescribed manner that the company appears to have been inactive for at least seven years, and no person has demonstrated a reasonable interest in, or reason for, it's continued existence; or has received a request in the prescribed manner and form and has determined that the company- (aa) has ceased to carry on business; and (bb) has no assets or, because of the inadequacy of its assets, there is no reasonable probability of the company being liquidated.
If the Commission deregisters a company as contemplated in subsection (3), any interested person may apply in the prescribed manner and form to the Commission, to reinstate the registration of the company.
A company is dissolved as of the date its name is removed from the companies register.
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.
Any liability contemplated in subsection (2) continues and may be enforced as if the company had not been removed from the register.
the liquidator of the company, or other person with an interest in the company, may apply to a court for an order declaring the dissolution to have been void, or any other order that is just and equitable in the circumstances; and 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.
except to the extent that the company has been exempted from the application of this Chapter, in terms of section 9; and subject to subsection (3); and a private company, a personal liability company or a non-proï¬t company, only to the extent contemplated in section 34(2) or as otherwise required by this Act to have its ï¬nancial statements audited.
the provisions of this Chapter and of the listing requirements apply concurrently, to the extent that it is possible to apply and comply with one of the inconsistent provisions without contravening the second; and to the extent that it is impossible to apply or comply with one of the inconsistent provisions without contravening the second, the provisions of this Act prevail.
if there is a conï¬ict 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 ï¬nancial year in respect of which the Auditor-General has elected, in terms of the Public Audit Act, 2004 (Act No. 25 of 2004), to conduct an audit of that enterprise; and 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.
a person to serve as auditor, in the manner and for the purposes set out in Part C; and an audit committee, in the manner and for the purposes set out in Part D.
as required by this Chapter; or voluntarily, as contemplated in section 34(2).
give notice to the holders of the company's securities of a general meeting, and convene such a meeting, to make that appointment; and 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),ora 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.
the name, registration number and registered office address of that ï¬rm or juristic person; and the name of any individual contemplated in section 90(3), if that section is applicable; and 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 ï¬le a notice of the appointment or termination, as the case may be, subject to subsection (4).
The incorporators of a company may ï¬le a notice of the appointment of the company's ï¬rst 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 person knowledgeable or experienced in relevant laws as a company secretary.
Every company secretary must be a permanent resident of the Republic, and must remain so while serving in that capacity, irrespective of whether the appointment is made as required by subsection (1), or voluntarily as contemplated in section 34(2).
the directors of the company; or 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 ï¬ll the vacancy by appointing a person whom the directors consider to have the requisite knowledge and experience.
every employee of that juristic person who provides company secretary services, or partner and employee of that partnership, as the case may be, satisï¬es the requirements contemplated in section 84(5); and at least one employee of that juristic person, or one partner or employee of that partnership, as the case may be, satisï¬es the requirements contemplated in section 86.
A change in the membership of a juristic person or partnership that holds office as company secretary does not constitute a casual vacancy in the office of company secretary, if the juristic person or partnership continues to satisfy the requirements of subsection (1).
the company is entitled to assume that the juristic person or partnership satisï¬es the requirements of subsection (1), until the company has received a notice contemplated in paragraph (a); and 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.
ensuring that a copy of the company's annual ï¬nancial statements is sent, in accordance with this Act, to every person who is entitled to it; and carrying out the functions of a person designated in terms of section 33(3).
one month written notice; or 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 ï¬nancial statements relating to that ï¬nancial 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 ï¬nancial 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 ï¬nancial statements.
Upon its incorporation, and each year at its annual general meeting, a public company or state-owned company must appoint an auditor.
a person who, at any time during the ï¬ve ï¬nancial years immediately preceding the date of appointment, was a person contemplated in any of subparagraphs (i) to (iv); or a person related to a person contemplated in subparagraphs (i) to (v); and 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 ï¬rm as an auditor, the individual determined by that ï¬rm, 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 ï¬rst auditor of the company within 40 business days after the date of incorporation of the company.
The ï¬rst auditor of a company holds office until the conclusion of the ï¬rst annual general meeting of the company.
an audit committee appointed by the company in terms of this Act objects to the reappointment; or 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 ï¬ll the vacancy in the office in terms of the procedure contemplated in section 91within 40 business days after the date of the meeting.
The resignation of an auditor is effective when the notice is ï¬led.
must appoint a new auditor within 40 business days, if there was only one incumbent auditor of the company; and 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.
the board must propose to the company's audit committee, within 15 business days after the vacancy occurs, the name of at least one registered auditor to be considered for appointment as the new auditor; and may proceed to make an appointment of a person proposed in terms of paragraph (a) if, within ï¬ve 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 ï¬rm as its auditor, any change in the composition of the members of that ï¬rm 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 ï¬rm 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 ï¬rm as auditor of the company, giving rise to a vacancy.
The same individual may not serve as the auditor or designated auditor of a company for more than ï¬ve consecutive ï¬nancial years.
If an individual has served as the auditor or designated auditor of a company for two or more consecutive ï¬nancial 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 ï¬nancial years.
If a company has appointed two or more persons as joint auditors, the company must manage the rotation required by this section in such a manner that all of the joint auditors do not relinquish office in the same year.
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 any order that is just and reasonable to prevent frustration of the auditor's duties by the company or any of its directors, prescribed officers or employees; and 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.
that would place the auditor in a conï¬ict of interest as prescribed or determined by the Independent Regulatory Board for Auditors in terms of section 44(6) of the Auditing Profession Act; or as may be determined by the company's audit committee in terms of section 94(7)(d).
applies concurrently with section 64 of the Banks Act, to any company that is subject to that section of that Act, but subsections (2), (3) and (4) of this section do not apply to the appointment of an audit committee by any such company; and does not apply to a company that has been granted an exemption in terms of section 64(4) of the Banks Act.
the company is a subsidiary of another company that has an audit committee; and the audit committee of that other company will perform the functions required under this section on behalf of that subsidiary company.
the incorporators of a company; or by the board, within 40 business days after the incorporation of the company.
a material supplier or customer of the company, such that a reasonable and informed third party would conclude in the circumstances that the integrity, impartiality or objectivity of that director is compromised by that relationship; and not be related to any person who falls within any of the criteria set out in paragraph (b).
The Minister may prescribe minimum qualiï¬cation 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 ï¬ll any vacancy on the audit committee within 40 business days after the vacancy arises.
to make submissions to the board on any matter concerning the company's accounting policies, ï¬nancial control, records and reporting; and to perform other functions determined by the board, including the development and implementation of a policy and plan for a systematic, disciplined approach to evaluate and improve the effectiveness of risk management, control, and governance processes within the company.
as a result of any previous appointment as auditor; or having regard to the extent of any consultancy, advisory or other work undertaken by the auditor for the company; and consider compliance with other criteria relating to independence or conï¬ict 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 public 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 satisï¬ed that the proposed auditor is independent of the company.
Neither the appointment nor the duties of an audit committee reduce the functions and duties of the board or the directors of the company, except with respect to the appointment, fees and terms of engagement of the auditor.
A company must pay all expenses reasonably incurred by its audit committee, including, if the audit committee considers it appropriate, the fees of any consultant or specialist engaged by the audit committee to assist it in the performance of its functions.
''untrue statement'' includes a statement that is misleading in the form and context in which it is made, subject to subsections (3) and (4).
For the purposes of this Chapter, a person is to be regarded, by or in respect of a company, as being a member of the public, despite that person being a shareholder of the company or a purchaser of goods from the company.
that appears on the face of the prospectus, written statement, or summary; or that is incorporated by reference within, or is attached to or accompanies, the prospectus, written statement or summary.
An omission from a prospectus or written statement of any matter that, in the context, is calculated to mislead by omission constitutes the making of an untrue statement in that prospectus or written statement, irrespective of whether this Act requires that matter to be included in the prospectus or written statement.
requires an applicant for securities to waive compliance with a requirement of this Chapter; or purports to affect an applicant for securities with any notice of any agreement, document or matter not speciï¬cally referred to in a prospectus or written statement.
Nothing in this Chapter limits any liability that a person may incur under this Act apart from this Chapter, or under any other public regulation, or under the common law.
the Public Investment Corporation as deï¬ned in the Public Investment Corporation Act, 2004 (Act No.
an authorised ï¬nancial services provider, as deï¬ned in the Financial Advisory and Intermediary Services Act, 2002 (Act No.
a ï¬nancial institution, as deï¬ned in the Financial Services Board Act, 1990 (Act No.
a wholly-owned subsidiary of a person contemplated in subparagraph (iii), (iv) or (v), acting as agent in the capacity of an authorised portfolio manager for a pension fund registered in terms of the Pension Funds Act, 1956 (Act No. 24 of 1956), or as manager for a collective investment scheme registered in terms of the Collective Investment Schemes Control Act, 2002 (Act No.
the subscription price, including any premium, of the securities issued in respect of the series of offers, does not exceed, in aggregate, the amount prescribed in terms of subsection (2)(a); and 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 ï¬rst of a series of offers, as the case may be.
a value of not less than R100 000, to be the minimum value for the purposes of subsection (1)(b) and the maximum value for the purposes of subsection (1)(g)(iv); and a minimum period for the purposes of subsection (1)(g)(v), which must not be less than six months.
states in its annual ï¬nancial statements the number of speciï¬ed shares that it has allotted during that ï¬nancial year in terms of its employee share scheme; and the compliance officer has complied with the requirements of subsection (2).
ï¬le a certiï¬cate within 60 business days after the end of each ï¬nancial year, certifying that the compliance officer has complied with the obligations in terms of this section during the past ï¬nancial year.
satisï¬es all of the requirements of this Act with respect to a registered prospectus; and is subject to every provision of this Act relating to the making of a prospectus.
to believe that the advertisement is a prospectus; or as to any material particular addressed in the prospectus relating to that offer; and is subject to sections 102 to 111, read with the changes required by the context.
is not required to be ï¬led, or registered with an exchange; and will be regarded as having been intended to be a prospectus, issued by the person responsible for publishing or disseminating the advertisement, if it does not include the statements required by subsection (2)(a), despite any statement to the contrary contained in the advertisement.
is a company; and in the case of a foreign company, a copy of its Memorandum of Incorporation, and a list of the names and addresses of its directors, has been ï¬led within 90 business days before the offer to the public is made.
A person must not make an initial public offering unless that offer is accompanied by a registered prospectus.
listed securities of a company, otherwise than in accordance with the requirements of the relevant exchange; or unlisted securities of a company, unless the offer is accompanied by a registered prospectus that satisï¬es the requirements of section 100; or secondary offer to the public of any securities of a company, unless the offer satisï¬es the requirements of section 101.
ï¬led, in the case of unlisted securities; or approved by the relevant exchange, in the case of listed securities.
a registered prospectus in the case of a primary offering; or a written statement that satisï¬es the requirements of section 101, in the case of a secondary offering; and bears on the face of it the date on which the prospectus in respect of those securities was ï¬led.
in connection with a genuine invitation to enter into an underwriting agreement with respect to the securities; or in relation to securities that were not offered to the public.
the number of existing holders of the company's securities who are resident within the Republic; and the administrative cost and inconvenience of extending the rights offer to them; and subject to any conditions attached to the approval contemplated in paragraph (a).
A person must not issue a prospectus or a document that purports to be a prospectus, or a document that may reasonably be misapprehended to be intended as a prospectus, unless it is a registered prospectus.
A prospectus may not be registered unless the requirements of this Act have been complied with and it has been ï¬led 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 ï¬led the prospectus for registration.
A prospectus may not be issued more than three months after the date of its registration, and if a prospectus is so issued, it is regarded to be unregistered.
This section does not apply in respect of listed securities, except listed securities that are the subject of an initial public offering.
the assets and liabilities, ï¬nancial position, proï¬ts and losses, cash ï¬ow and prospects of the company in which a right or interest is to be acquired; and the securities being offered and rights attached to them; and adhere to the prescribed speciï¬cations.
The date of registration of a prospectus is the date of the issue of the prospectus unless the contrary is proven.
a copy of any material agreement as prescribed; or 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 certiï¬ed 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 ï¬led, 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.
A declaration contemplated in subsection (6) must be sworn by the person named as underwriter or, if the underwriter is a company, by each of two directors of that company, or if it has only one director, by that director.
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 ï¬led not later than the date of the proposed offer of shares.
that publication of the information would be unnecessarily burdensome for the applicant, seriously detrimental to the company whose securities are the subject of the prospectus, or against public interest; and that users will not be unduly prejudiced by the omission.
An application under subsection (9) must be in writing and accompanied by the prescribed fee.
report on any new matter; and report on any change of a matter included in the prospectus, provided these are relevant or material in terms of this Chapter.
A correction or report under subsection (11) must be registered as a supplement to the prospectus, simultaneously published to known recipients of the prospectus and included in future distributions of the prospectus.
negating the right of the subscriber to withdraw the offer; or to reverse any transaction, or restore any consideration paid or beneï¬t received by any person in terms of the offer and subscription.
listed on an exchange; or in respect of which an exchange has granted permission to deal.
the registered prospectus that accompanied the primary offering of those securities, together with any revisions required to address changes in any material matter since the date the prospectus was registered; or a written statement that satisï¬es 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. 66 of 1965); or for the purpose of a sale in execution or by public auction or by public tender.
ï¬le a copy of the written statement for registration before it is issued, distributed or published; and not issue, distribute or publish the statement more than three months after the date on which it is registered.
the person making the offer or issuing, distributing or publishing the material; and if that person is a company, by every director of the company.
if any securities were issued by the company as partly paid-up shares under the Companies Act, 1973 (Act No. 61 of 1973), to what extent they are paid up; and 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 prospectus includes a statement that the expert has consented to the use of the statement and has not withdrawn that consent.
be named to act in the stated capacity; and to the use of that person's name in the prospectus.
Subject to subsection (2), within one year after the date of ï¬ling 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 variation was contemplated and set out in the prospectus; or the speciï¬c terms of the variation are authorised or ratiï¬ed by an ordinary resolution adopted at a general shareholders meeting.
authorised the issue of the prospectus, or under this Act, is regarded as having authorised the issue of that prospectus; or 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.
The liability contemplated in subsection (1) is in addition to the liability of a director of the company, as set out in section 77(3)(d)(ii).
the prospectus was issued without the knowledge or consent of that person and, on becoming aware of its issue, that person forthwith gave reasonable public notice that it was issued without the knowledge or consent of that person; or 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.
are liable to the extent set out in section 77(3)(d)(ii); and 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.
not given that consent; or has withdrawn it before the issue of the prospectus.
having authorised the issue of the prospectus; or having become a director between the issue of the prospectus and the holding of the ï¬rst general shareholders meeting at which directors are elected or appointed, has satisï¬ed 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 satisï¬ed such liability was, and that other person was not, guilty of fraudulent misrepresentation.
to compensate persons purchasing on the faith of the prospectus, except in respect of any untrue statement purporting to be made by that person as an expert; or to indemnify any person against liability under section 104(6).
was competent to make the statement; and 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 defences available to a person in this subsection are in lieu of any applicable defence available in terms of section 104(3).
If a prospectus contains a statement that is untrue, every person referred to in section 104(1) or (2) is equally responsible in terms of the enforcement provisions of this Act, for that untrue statement, subject to the provisions of subsections (2) and (3).
the report or extract contains a statement that is untrue; and 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).
the untrue statement was immaterial; or 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 ï¬ling the prospectus for that offer.
the subscription has been made on an application form that has been attached to or accompanied by a prospectus; or 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.
A company that has offered securities to the public must not allot any of those securities unless the amount stated in that prospectus as the minimum amount which in the opinion of the directors of the company concerned must be raised by the issue of securities in order to provide for the matters prescribed to be covered by minimum subscription and the amount so stated has been paid to and received by the company.
an amount stated in any cheque received by the company must not be regarded to have been paid to it until the amount of the cheque has been unconditionally credited to its account with its bankers; and 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 ï¬de due by the company.
The minimum amount contemplated in subsection (2) must be reckoned exclusively of any amount payable otherwise than in cash.
be paid into a separate account with a banking institution registered under the Banks Act; and not be used or made available for the purposes of the company or for the satisfaction of its debts.
If the circumstances contemplated in subsection (2) have not been realised within 40 business days after the issue of the prospectus, all amounts received from applicants must be repaid to them promptly without interest.
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 at 6% per year, 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.
that allotment is voidable at the instance of the applicant concerned, irrespective whether the company concerned may be in the course of being wound up; and 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).
20 business days after the applicant discovers the contravention; or 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 ï¬rst issued or such later time, if any, speciï¬ed in the prospectus.
is a reference to the day on which it is ï¬rst issued as a newspaper advertisement; or if it is not issued as a newspaper advertisement before the third day after the day on which it is ï¬rst issued in any other manner, is a reference to the day on which it is ï¬rst issued in that other manner.
A contravention of subsection (1) does not affect the validity of an allotment or acceptance.
an application has in fact been made in accordance with the requirements of the relevant exchange on or before the date of issue of that prospectus; and the prospectus names the particular exchange to which the application has been made.
the application contemplated in subsection (1)(a) is granted; or an appeal against a refusal of such an application is upheld.
two or more wholly-owned subsidiaries of the same holding company; or 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 disposal has been approved by a special resolution of the shareholders, in accordance with section 115; and the company has satisï¬ed all other requirements set out in section 115, to the extent those requirements are applicable to such a disposal by that company.
the precise terms of the transaction or series of transactions, to be considered at the meeting; and the provisions of sections 115 and 164, in a manner that satisï¬es the prescribed standards.
Any part of the undertaking or assets of a company to be disposed of, as contemplated in this section, must be given its fair market value as at the date of the proposal, in accordance with the ï¬nancial reporting standards.
A resolution contemplated in subsection (2) is effective only to the extent that it authorises or ratiï¬es a speciï¬c transaction.
Two or more proï¬t 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.
details of any arrangement or strategy necessary to complete the amalgamation or merger, and to provide for the subsequent management and operation of the proposed amalgamated or merged company or companies; and the estimated cost of the proposed amalgamation or merger.
If the securities of one of the amalgamating or merging companies are held by or on behalf of another of the amalgamating or merging companies, the agreement required by subsection (2) must provide for the cancellation of those securities when the amalgamation or merger becomes effective, without any repayment of capital in respect thereof, and no provision may be made in the agreement for the conversion of those securities into securities of an amalgamated or merged company.
must consider whether, upon implementation of the agreement, each proposed amalgamated or merged company will satisfy the solvency and liquidity test; and 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 amalgamation or merger agreement; and the provisions of sections 115 and 164 in a manner that satisï¬es 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 re-acquisition by the company of its securities; or a combination of the methods contemplated in this subsection.
assess the effect of the arrangement on the value of securities and on the rights and interests of a holder of any securities, or a creditor of the company; and able to express opinions, exercise judgment and make decisions impartially.
be related to a person who has or has had a relationship contemplated in subparagraph (i) or (ii).
state the effect of the proposed arrangement on the interest and person contemplated in paragraph (e); and include a copy of sections 115 and 164.
implement a scheme of arrangement, the Panel has issued a compliance notice in respect of the transaction in terms of section 119(4)(b),or exempted the transaction in terms of section 119(6).
having regard to the consolidated ï¬nancial statements of the holding company, the disposal by the subsidiary substantially constitutes a disposal of all or the greater part of the assets or undertaking of the holding company; and by the court, to the extent required in the circumstances and manner contemplated in subsections (3) to (6).
the resolution was opposed by at least 15% of the voting rights that were exercised on that resolution, and any person who voted against the resolution requires the company to seek court approval; or the court, on an application 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).
present in satisfaction of the quorum requirement; or voted in support of a resolution.
apply to the court for approval, and bear the costs of that application; or treat the resolution as a nullity.
appears prepared and able to sustain the proceedings; and has alleged facts which, if proved, would support an order in terms of subsection (7).
the resolution is manifestly unfair to any class of holders of the company's securities; or the vote was materially tainted by conï¬ict of interest, inadequate disclosure, failure to comply with the Act, the Memorandum of Incorporation or any applicable rules of the company, or other signiï¬cant and material procedural irregularity.
notiï¬ed the company in advance of the intention to oppose a special resolution contemplated in this section; and was present at the meeting and voted against that special resolution.
incidental, consequential and supplemental matters that are necessary for the effectiveness and completion of the transaction; or any other relief that may be necessary or appropriate to give effect to, and properly implement, the amalgamation or merger.
there are no other remedies available to the creditor.
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.
after the court has disposed of any proceedings arising in terms of subsection (1)(b) and (c); and subject to the order of the court.
the Memorandum of Incorporation of any company newly incorporated in terms of the agreement.
issue a registration certiï¬cate for each company, if any, that has been newly incorporated in terms of the amalgamation or merger agreement; and 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 judgement may be enforced by or against any of the amalgamated or merged, company.
the property of each amalgamating or merging company becomes property of the newly amalgamated, or surviving merged, company or companies; and each newly amalgamated, or surviving merged, company is liable for all of the obligations of every amalgamating or merging company subject to subsection (8), the requirements of section 113(1), and any provision of the merger agreement, or any other agreement.
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 ï¬led 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 conï¬ict between a provision of subsection (7) and a provision of section 54 of that Act, the provisions of that Act prevail.
has associated with it the right to vote generally at a general shareholders meeting; or is convertible to a instrument that satisï¬es the criteria set out in subparagraph (i).
For the purposes of this Part, Part C and the Takeover Regulations, two or more related or inter-related persons are regarded to have acted in concert, unless there is satisfactory evidence that they acted independently in any particular matter.
the percentage of the issued securities of that company that have been transferred, other than by transfer between or among related or interrelated persons, within the period of 24 months immediately before the date of a particular affected transaction or offer exceeds the percentage prescribed in terms of subsection (2); or 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%, 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 proposed amalgamation or merger involving at least one regulated company; or 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.
the conï¬icting provisions apply concurrently to the extent that it is possible to apply and comply with one of the inconsistent provisions without contravening the second; and 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.
A person granted an option to acquire shares with a voting right in a regulated company is presumed to have acted in concert with the grantor of the option, unless the voting rights are retained by the grantor.
A presumption under subsection (5) may be rebutted by evidence to the contrary.
necessary information to holders of securities of regulated companies, to the extent required to facilitate the making of fair and informed decisions; and adequate time for regulated companies and holders of their securities to obtain and provide advice with respect to offers; and 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.
receive the same information from an offeror, potential offeror, or offeree regulated company during the course of an affected transaction, or when an affected transaction is contemplated; and are provided sufficient information, and permitted sufficient time, to enable them to reach a properly informed decision.
the issue of circulars by brokers or advisers to any party to the transaction to their own investment clients, with the prior approval of the Panel.
issue clearance notices, if the Panel is satisï¬ed that the offer or transaction satisï¬es the requirements of this Part, Part C and the Takeover Regulations; and 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.
the cost of compliance is disproportionate relative to the value of the affected transaction; or doing so is otherwise reasonable and justiï¬able in the circumstances having regard to the principles and purposes of this Part, Part C and the Takeover Regulations.
prescribed fees and levies imposed in terms of an Act of Parliament on certain companies; and any other matters relating to the powers and functions of the Panel.
issued a clearance notice with respect to the transaction; or granted an exemption for that transaction.
acquires a beneï¬cial interest in sufficient securities of a class issued by that company such that, as a result of the acquisition, the person holds a beneï¬cial interest in securities amounting to 5%, 10%, 15%, or any further whole multiple of 5%, of the issued securities of that class; or disposes of a beneï¬cial 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 beneï¬cial interest in securities amounting to a particular multiple of 5% of the issued securities of that class.
related or inter-related person; and person who has acted in concert with any other person.
ï¬le a copy with the Panel; and report the information to the holders of the relevant class of securities unless the notice concerned a disposition of less than 1% of the class of securities.
any other person, any securities that may be acquired by that other person if they exercised any options, conversion privileges or similar rights, are to be excluded.
In this section, ''prescribed percentage'' means the percentage prescribed by the Minister in terms of subsection (5).
before that acquisition a person was, or persons contemplated in paragraph (a)(ii) together were, able to exercise less than the prescribed percentage of all the voting rights attached to securities of that company; and 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.
a statement that they are in a position to exercise at least the prescribed percentage of all the voting rights attached to securities of that regulated company; and offering to acquire any remaining such securities on terms determined in accordance with this Act and the Takeover Regulations.
Within one month after giving notice in terms of subsection (3), the person or persons contemplated in subsection (2) must deliver a written offer, in compliance with the Takeover Regulations, to the holders of the remaining securities of that company, to acquire those securities on the terms contemplated in subsection (3)(b).
For the purposes contemplated in this section, the Minister, on the advice of the Panel, may prescribe a percentage of not more than 35% of the voting securities of a company.
that the offer has been accepted to that extent; and that the offeror desires to acquire all remaining securities of that class; and 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.
that the offeror is not entitled to acquire the applicant's securities of that class; or imposing conditions of acquisition different from those of the original offer.
the court is satisï¬ed 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.
within three months after receiving a notice in terms of paragraph (a), a person may demand that the offeror acquire all of the person's securities of the class concerned; and 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.
transmit a copy of the notice to the regulated company whose securities are the subject of the offer, together with an instrument of transfer, executed on behalf of the holder of the those securities by any person appointed by the offeror; and pay or transfer to that company the consideration representing the price payable by the offeror for the securities concerned, 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 securities warrant is for the time being outstanding.
held in trust by the company for the person entitled to the securities in respect of which the consideration was received; and 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 beneï¬t 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).
for any securities of a company that has more than one class of securities; and that could result in the person, together with any related or inter-related person or person acting in concert with any of them, holding securities of the company entitling the persons or persons to exercise more than the prescribed percentage of the general voting rights of all issued securities of the company, a comparable offer must be made for each class of issued securities of that company.
include a speciï¬c and prominent notice that the offer could result in circumstances contemplated above; and include a speciï¬c statement setting out the extent to which the person or persons referred to above will be free to acquire further securities in the company without making a general offer, if the offer succeeds to the extent contemplated above.
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 speciï¬ed in terms of subsection (3)(b)(i).
any holder of those securities is entitled to accept the offer in full for the relevant percentage of that person's holding; and 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.
enter into contracts otherwise than in the ordinary course of business; or 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.
If a regulated company believes that it is subject to a pre-existing obligation contemplated in subsection (1), it may apply to the Panel for consent to proceed.
deal in, or enter into arrangements to deal in, securities of the offeree regulated company; or 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.
the sale is on the same terms and conditions as the offer; or acquire any securities in the offeree company after giving the notice contemplated in paragraph (a)(ii).
make an offer for the relevant securities of the offeree company; or 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.
Subsection (3) applies equally to a partial offer whether or not the offer has become or been declared unconditional, but the period of 12 months runs from that date on which that offer became or was declared to be unconditional, or is withdrawn or lapsed, as the case may be.
any person who acted in concert with the offeror; or 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.
''voting interest'' means an interest as recognised, appraised and valued in terms of section 145(4) to (6).
For the purpose of subsection (1)(f), 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 shares of that company.
For the purposes contemplated in subsection (1)(e) or in any other law, the Judge President of a High Court may designate any judge of that court generally as a specialist to determine issues relating to commercial matters, commercial insolvencies and business rescue.
the company is ï¬nancially distressed; and there appears to be a reasonable prospect of rescuing the company.
may not be adopted if liquidation proceedings have been initiated by or against the company; and has no force or effect until it has been ï¬led.
publish a notice of the resolution, and its effective date, in the prescribed manner to every affected person, including with the notice a sworn statement of the facts relevant to the grounds on which the board resolution was founded; and appoint a business rescue practitioner who satisï¬es the requirements of section 138, and who has consented in writing to accept the appointment.
ï¬le a notice of the appointment of a practitioner within two business days after making the appointment; and publish a copy of the notice of appointment to each affected person within ï¬ve business days after the notice was ï¬led.
its resolution to begin business rescue proceedings and place the company under supervision lapses and is a nullity; and the company may not ï¬le 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 ï¬ling a further resolution.
A company that has adopted a resolution contemplated in this section may not adopt a resolution to begin liquidation proceedings, unless the resolution has lapsed in terms of subsection (5), or until the business rescue proceedings have ended as determined in accordance with section 132(2).
If the board of a company has reasonable grounds to believe that the company is ï¬nancially 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)(e) that are applicable to the company, and its reasons for not adopting a resolution contemplated in this section.
lacks the necessary skills, having regard to the company's circumstances; or 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)(a) to set aside that resolution; or subsection (1)(b) to set aside the appointment of the practitioner appointed by the company, unless that person satisï¬es 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.
serve a copy of the application on the company and the Commission; and notify each affected person of the application in the prescribed manner.
Each affected person has a right to participate in the hearing of an application in terms of this section.
an order placing the company under liquidation; or 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 satisï¬ed 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 court must appoint an alternate practitioner who satisï¬es the requirements of section 138, recommended by, or acceptable to, the holders of a majority of the independent creditors' voting interests who were represented in the hearing before the court; and the provisions of subsection (5)(b), if relevant, apply to the practitioner appointed in terms of paragraph (a).
Unless a company has adopted a resolution contemplated in section 129, an affected person may apply to a court at any time for an order placing the company under supervision and commencing business rescue proceedings.
it is otherwise just and equitable to do so for ï¬nancial reasons, and there is a reasonable prospect for rescuing the company; or dismissing the application, together with any further necessary and appropriate order, including an order placing the company under liquidation.
the court has adjudicated upon the application; or the business rescue proceedings end, if the court makes the order applied for.
In addition to the powers of a court on an application contemplated in this section, a court may make an order contemplated in subsection (4), or (5) if applicable, at any time during the course of any liquidation proceedings or proceedings to enforce any security against the company.
may not adopt a resolution placing itself in liquidation until the business rescue proceedings have ended as determined in accordance with section 132(2); and must notify each affected person of the order within ï¬ve business days after the date of the order.
a person applies to the court for an order placing the company under supervision in terms of section 131(1); or during the course of liquidation proceedings, or proceedings to enforce a security interest, a court makes an order placing the company under supervision.
proposed and rejected in terms of Part D of this Chapter, and no affected person has acted to extend the proceedings in any manner contemplated in section 153; or adopted in terms of Part D of this Chapter, and the practitioner has subsequently ï¬led a notice of substantial implementation of that plan.
Commission, in any other case.
criminal proceedings against the company or any of its directors or officers; or proceedings concerning any property or right over which the company exercises the powers of a trustee.
During business rescue proceedings, a guarantee or surety by a company in favour of any other person may not be enforced by any person against the company except with leave of the court and in accordance with any terms the court considers just and equitable in the circumstances.
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.
any person who, as a result of an agreement made in the ordinary course of the company's business before the business rescue proceedings began, is in lawful possession of any property owned by the company may continue to exercise any right in respect of that property as contemplated in that agreement, subject to section 136; and 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 whether the property is owned by the company, except to the extent that the practitioner consents in writing.
the circumstances of the company; and the nature of the property, and the rights claimed in respect of it.
pay to that other person the sale proceeds attributable to that property up to the amount of the company's indebtedness to that other person; or provide security for the amount of those proceeds, to the reasonable satisfaction of that other person.
the money is regarded to be post-commencement ï¬nancing; and will be paid in the order of preference set out in subsection (3)(a).
may be secured to the lender by utilising any asset of the company to the extent that it is not otherwise encumbered; and will be paid in the order of preference set out in subsection (3)(b).
all claims contemplated in subsection (2), irrespective whether or not they are secured; and all unsecured claims against the company; or in subsection (2) will have preference in the order in which they were incurred over all unsecured claims against the company.
If business rescue proceedings are superseded by a liquidation order, the preference conferred in terms of this section will remain in force, except to the extent of any claims arising out of the costs of liquidation.
changes occur in the ordinary course of attrition; or the employees and the company, in accordance with applicable labour laws, agree different terms and conditions; and 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.
Subject to sections 35A and 35B of the Insolvency Act, 1936 (Act No. 24 of 1936), despite any provision of an agreement to the contrary, during business rescue proceedings, the practitioner may cancel or suspend entirely, partially or conditionally any provision of an agreement to which the company is a party at the commencement of the business rescue period, other than an agreement of employment.
Any party to an agreement that has been suspended or cancelled, or any provision which has been suspended or cancelled, in terms of subsection (2), may assert a claim against the company only for damages.
If liquidation proceedings have been converted into business rescue proceedings, the liquidator is a creditor of the company to the extent of any outstanding claim by the liquidator for any remuneration due for work performed, or compensation for expenses incurred, before the business rescue proceedings began.
that the court otherwise directs; or contemplated in an approved business rescue plan.
remains bound by the requirements of section 75 concerning personal ï¬nancial interests of the director or a related person; and 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.
the development or implementation of a business rescue plan in accordance with this Chapter.
Subsection (5) is in addition to any right of a person to apply to a court for an order contemplated in section 162.
does not have any other relationship with the company such as would lead a reasonable and informed third party to conclude that the integrity, impartiality or objectivity of that person is compromised by that relationship; and is not related to a person who has a relationship contemplated in paragraph (d).
functions predominantly to promote sound principles and good practice of business turnaround or rescue; and has sufficient human, ï¬nancial and operational resources, and adequate administrative procedures and safeguards, to enable it to function efficiently and to effectively carry out its functions in terms of this Chapter, or presents to the Minister a credible plan to acquire or develop those resources.
minimum qualiï¬cations for admission of a person to the practice of a business rescue practitioner; and procedures to be followed by a person or association designated by the Minister in terms of subsection (2) in carrying out its functions and powers in terms of this Chapter.
by a court order in terms of section 130; or as provided for in this section.
conï¬ict of interest or lack of independence; or the practitioner is incapacitated and unable to perform the functions of that office, and is unlikely to regain that capacity within a reasonable time.
The company, or the creditor who nominated the practitioner, as the case may be, must appoint a new practitioner if a practitioner dies, resigns or is removed from office, subject to the right of an affected person to bring a fresh application in terms of section 130(1)(b) to set aside that new appointment.
develop a business rescue plan to be considered by affected persons, in accordance with Part D of this Chapter; and implement any business rescue plan that has been adopted in accordance with Part D of this Chapter.
has any other relationship with the company such as would lead a reasonable and informed third party to conclude that the integrity, impartiality or objectivity of that person is compromised by that relationship; or is related to a person who has a relationship contemplated in paragraph (a).
is not liable for any act or omission in good faith in the course of the exercise of the powers and performance of the functions of practitioner; but 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.
If the business rescue process concludes with an order placing the company in liquidation, any person who has acted as practitioner during the business rescue process may not be appointed as liquidator of the company.
As soon as practicable after being appointed, a practitioner must investigate the company's affairs, business, property, and ï¬nancial situation, and after having done so, consider whether there is any reasonable prospect of the company being rescued.
direct the management to take any necessary steps to rectify the matter, including recovering any misappropriated assets of the company.
A court to which an application has been made in terms of subsection (2)(a)(ii) may make the order applied for, or any other order that the court considers appropriate in the circumstances.
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 director of a company who knows where other books and records relating to the company are being kept, must inform the practitioner as to the whereabouts of those books and records.
any debtors and their obligations to the company; and 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.
The practitioner is entitled to charge an amount to the company for the remuneration and expenses of the practitioner in accordance with the tariff prescribed in terms of subsection (6).
the adoption of a business rescue plan at all, or within a particular time, or the inclusion of any particular matter within such a plan; or the attainment of any particular result or combination of results relating to the business rescue proceedings.
the holders of a majority of the creditors' voting interests, as determined in accordance with section 145(4) to (6), present and voting at a meeting called for the purpose of considering the proposed agreement; and 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 agreement is not just and equitable; or that the remuneration provided for in the agreement is egregiously unreasonable having regard to the ï¬nancial 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.
The Minister may make regulations prescribing a tariff of fees and expenses for the purpose of subsection (1).
collectively through their trade union; and in accordance with applicable labour law; or 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.
propose the development of an alternative plan, in the manner contemplated in section 153; or present an offer to acquire the interests of one or more affected persons, in the manner contemplated in section 153.
any amount that was due and payable by the company to the trustees of the scheme at any time before the beginning of the company's business rescue proceedings, and that had not been paid immediately before the beginning of those proceedings; and in the case of a deï¬ned beneï¬t pension scheme, the present value at the commencement of the business rescue proceedings of any unfunded liability under that scheme.
The rights set out in this section are in addition to any other rights arising or accruing in terms of any law, contract, collective agreement, shareholding, security or court order.
formally participate in a company's business rescue proceedings to the extent provided for in this Chapter; and informally participate in those proceedings by making proposals for a business rescue plan to the practitioner.
propose the development of an alternative plan, in the manner contemplated in section 153; or 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 secured or unsecured creditor has a voting interest equal to the value of the amount owed to that creditor by the company; and 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.
request a suitably qualiï¬ed person to independently and expertly appraise and value an interest contemplated in subsection (4)(b); and 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 the practitioner's determination that the person is, or is not, an independent creditor; or review, re-appraise and re-value that person's voting interest, as determined in terms of subsection (5)(b).
propose the development of an alternative plan, in the manner contemplated in section 153; or 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.
must inform the creditors whether the practitioner believes that there is a reasonable prospect of rescuing the company; and may receive proof of claims by creditors; and the creditors may determine whether or not a committee of creditors should be appointed and, if so, may appoint the members of the committee.
date, time and place of the meeting; and 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 practitioner must inform the employees' representatives whether the practitioner believes that there is a reasonable prospect of rescuing the company; and the employees' representatives may determine whether or not an employees' committee should be appointed and, if so, may appoint the members of the committee.
may, on behalf of the general body of creditors or employees, respectively, receive and consider reports relating to the business rescue proceedings; and must act independently of the practitioner to ensure fair and unbiased representation of creditors' or employees' interests.
an agent, proxy or attorney of an independent creditor or employee, or other person acting under a general power of attorney; or authorised in writing by an independent creditor or employee to be a member.
The practitioner, after consulting the creditors, other affected persons, and the management of the company, must prepare a business rescue plan for consideration and possible adoption at a meeting held in terms of section 151.
a copy of the written agreement concerning the practitioner's remuneration; and 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.
a projected- (aa) balance sheet for the company; and (bb) statement of income and expenses for the ensuing three years, prepared on the assumption that the proposed business plan is adopted.
must include a notice of any material assumptions on which the projections are based; and may include alternative projections based on varying assumptions and contingencies.
actual information provided appears to be accurate, complete, and up to date; and projections provided are estimates made in good faith on the basis of factual information and assumptions as set out in the statement.
the court, on application by the company; or the holders of a majority of the creditors' voting interests.
the agenda of the meeting; and 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.
amend the proposed plan, in any manner moved and seconded by holders of creditors' voting interests, and satisfactory to the practitioner; or direct the practitioner to adjourn the meeting in order to revise the plan for further consideration; and call for a vote for preliminary approval of the proposed plan, as amended if applicable, unless the meeting has ï¬rst been adjourned in accordance with paragraph (d)(ii).
it was supported by the holders of more than 75% of the creditors' voting interests that were voted; and the votes in support of the proposed plan included at least 50% of the independent creditors' voting interests, if any, that were voted.
the practitioner must immediately hold a meeting of holders of the class, or classes of securities who rights would be altered by the plan, and call for a vote by them to approve the adoption of the proposed business rescue plan; and if, in a vote contemplated in subparagraph (i), a majority of the voting rights that were exercised- (aa) support adoption of the plan, it will have been ï¬nally adopted, subject only to satisfaction of any conditions on which it is contingent; or (bb) oppose adoption of the plan, the plan is rejected, and may be considered further only in terms of section 153.
voted in favour of adoption of the plan; or in the case of creditors, had proven their claims against the company.
attempt to satisfy any conditions on which the business rescue plan is contingent; and implement the plan as adopted.
the practitioner may, in accordance with that plan, determine the consideration for, and issue, any authorised securities of the company, despite section 38 or 40 to the contrary; and 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 the business rescue plan, despite any provision of section 16, 36 or 37 to the contrary.
Except to the extent that an approved business rescue plan provides otherwise, a pre-emptive right of any shareholder of the company, as contemplated in section 39, does not apply with respect to an issue of shares by the company in terms of the business rescue plan.
When the business rescue plan has been substantially implemented, the practitioner must ï¬le a notice of the substantial implementation of the business rescue plan.
seek a vote of approval from the holders of voting interests to prepare and publish a revised plan; or 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.
any affected person, or combination of affected persons, may make a binding offer to purchase the voting interests of one or more persons who opposed adoption of the business rescue plan, at a value independently and expertly determined, on the request of the practitioner, to be a fair and reasonable estimate of the return to that person, or those persons, if the company were to be liquidated.
for ï¬ve business days, unless the contemplated application is made to the court during that time; or until the court has disposed of the contemplated application.
conclude the meeting after that vote; and prepare and publish a new or revised business rescue plan within 10 business days; and the provisions of this Part apply afresh to the publishing and consideration of that new or revised plan.
adjourn the meeting for no more than ï¬ve business days, as necessary to afford the practitioner an opportunity to make any necessary revisions to the business rescue plan to appropriately reï¬ect the results of the offer; and 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 ï¬le a notice of the termination of the business rescue proceedings.
A holder of a voting interest, or a person acquiring that interest in terms of a binding offer, may apply to a court to review, re-appraise and re-value a determination by an independent expert in terms of subsection (1)(b)(ii).
A business rescue plan may provide that, if it is implemented in accordance with its terms and conditions, a creditor who has acceded to the discharge of the whole or part of a debt owing to that creditor will lose the right to enforce the relevant debt or part of it.
If a business rescue plan has been approved and implemented in accordance with this Chapter, a creditor is not entitled to enforce any debt owed by the company immediately before the beginning of the business rescue process, except to the extent provided for in the business rescue plan.
ï¬nancially distressed as deï¬ned in section 128(1)(f), unless it is engaged in business 5 rescue proceedings in terms of this Chapter.
whether the proposal includes a proposal made informally by a creditor of the company.
the beneï¬ts of adopting the proposal as opposed to the beneï¬ts 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, 55 prepared on the assumption that the proposal is accepted.
must include a notice of any signiï¬cant assumptions on which the projections are based; and may include alternative projections based on varying assumptions and contingencies.
factual information provided appears to be accurate, complete, and up to the date; and projections provided are estimates made in good faith on the basis of factual information and assumptions as set out in the statement.
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% 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.
the number of creditors of any affected class of creditors, who were present or represented at the meeting, and who voted in favour of the proposal; and 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.
must be attached to each copy of the company's Memorandum of Incorporation that is kept at the company's registered office, or elsewhere as contemplated in section 25; and is ï¬nal 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 ï¬led.
An arrangement or a compromise contemplated in this section does not affect the liability of any person who is a surety of the company.
the Panel, if the complaint concerns a matter within its jurisdiction; or the Commission in respect of any matter arising in terms of this Act, other than a matter contemplated in subparagraph (i).
acting as a member of, or in the interest of, a group or class of affected persons, or an association acting in the interest of its members; or acting in the public interest, with leave of the court.
commence any proceedings in a court in the name of a person who, when ï¬ling a complaint with the Commission or Panel, as the case may be, in respect of the matter giving rise to those proceedings, also made a written request that the Commission or Panel do so; or 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.
on behalf of a person entitled to make a demand in terms of section 165(2); and in the manner set out in section 165.
must promote the spirit, purpose and objects of this Act; and 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 deï¬ned in the Protected Disclosures Act, 2000 (Act No.
that right or protection is in addition to, and not in substitution for, any right or protection established by that Act; and that Act applies to a disclosure contemplated in this section by an employee, as deï¬ned in that Act, irrespective 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.
unfairly discriminated, or condoned unfair discrimination, against any person, as contemplated in section 9 of the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No. 4 of 2000); or 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.
has qualiï¬ed privilege in respect of the disclosure; and is immune from any civil, criminal or administrative liability for that disclosure.
intends the ï¬rst person to fear that the threat will be carried out; or is reckless as to causing the ï¬rst person to fear that the threat will be carried out, irrespective of whether the ï¬rst person actually feared that the threat would be carried out.
Any conduct or threat contemplated in subsection (5) is presumed to have occurred as a result of a possible or actual disclosure that a person is entitled to make, or has made, unless the person who engaged in the conduct or made the threat can show satisfactory evidence in support of another reason for engaging in the conduct or making the threat.
establish and maintain a system to receive disclosures contemplated in this section conï¬dentially, and act on them; and 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 section 12(3) or section 14(3), 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 satisï¬es the requirements of section 11.
within three months after the date of a notice contemplated in subsection (1), if the applicant received such a notice; or 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 ï¬le 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 ï¬ling the notice of amendment contemplated in this paragraph.
Within 20 business days after receiving a notice or a decision issued by the Companies Tribunal in terms of this section, an incorporator of a company, a company, a person who received a notice in terms of section 12(3) or 14(3), an applicant under subsection (1) or and any other person with an interest in the name or proposed name that is the subject of the application, as the case may be, may apply to a court to review the notice or decision.
any of its directors to the extent that they are or may be held liable in terms of section 77.
in terms of this Act; or in terms of the common law, subject to this Act.
regulating an industry or sector of an industry; or imposing obligations on, prohibiting any conduct by, or otherwise regulating the activities of, a juristic person.
subsection (5)(a) to (c) apply, in the case of an application for a declaration of delinquency; or subsections (7)(a) and (8) apply, in the case of an application for probation.
subsection (5) apply, in the case of an application for a declaration of delinquency; or subsections (7) and (8) apply, in the case of an application for probation.
the person is a director of a company or, within the 24 months immediately preceding the application, was a director of a company; and any of the circumstances contemplated in subsection (5)(d) to (f) apply with respect to any legislation administered by that organ of state.
while under an order of probation in terms of this section or section 47 of the Close Corporations Act, 1984 (Act No.
the person was a director of each such company, or a managing member of each such close corporation or was responsible for the management of each such juristic person, at the time of the contravention that resulted in the conviction, administrative ï¬ne or other penalty; and the court is satisï¬ed that the declaration of delinquency is justiï¬ed, 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.
the person has been a director of more than one company, or a managing member of more than one close corporation, irrespective whether concurrently, sequentially or at unrelated times; and during the time that the person was a director of each such company or managing member of each such close corporation, two or more of those companies or close corporations each failed to fully pay all of its creditors or meet all of its obligations, except in terms of- (aa) a business rescue plan resulting from a resolution of the board in terms of section 129; or (bb) a compromise with creditors in terms of section 155.
the manner in which the company or close corporation was managed was wholly or partly responsible for it failing to meet its obligations; and the declaration is justiï¬ed, 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.
may be made subject to any conditions the court considers appropriate, including conditions limiting the application of the declaration to one or more particular categories of companies; and subsists for a period not exceeding ï¬ve years, as determined by the court at the time it makes the declaration, subject to subsections (11) and (12).
be supervised by a mentor in any future participation as a director while the order remains in force; or be limited to serving as a director of a private company, or of a company of which that person is the sole shareholder.
delinquency at any time more than two years after it was suspended as contemplated in paragraph (a);or of probation, at any time more than two years after it was made.
the applicant has demonstrated satisfactory progress towards rehabilitation, and there is a reasonable prospect that the applicant would be able to serve successfully as a director of a company in the future.
An applicant in terms of subsection (4) must serve the Commission with a copy of the application.
the business of the company, or a related person, is being or has been carried on or conducted in a manner that is oppressive or unfairly prejudicial to, or that unfairly disregards the interests of, the applicant; or 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 directing rectiï¬cation of the registers or other records of a company; or an order for the trial of any issue as determined by the court.
the directors must promptly ï¬le a notice of amendment to give effect to that order, in accordance with section 16(4); and 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.
Whenever a court, on application by an interested person, or in any proceedings in which a company is involved, ï¬nds that the incorporation of, or any act by or on behalf of, or any use of, that company constitutes an unconscionable abuse of the juristic personality of the company as a separate entity, the court may declare that the company is to be deemed not to be a juristic person in respect of such rights, obligations or liabilities of the company, or of such member or shareholder thereof, or of such other person as speciï¬ed in the declaration, and the court may give such further order or orders as it may deem ï¬t in order to give effect to such declaration.
This section does not apply in any circumstances relating to a transaction, agreement or offer pursuant to a business rescue plan that was approved by shareholders of a company, in terms of section 152.
amend its Memorandum of Incorporation by altering the preferences, rights, limitations or other terms of any class of its shares in any manner materially adverse to the rights or interests of holders of that class of shares, as contemplated in section 37(8); or 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.
At any time before a resolution referred to in subsection (2) is to be voted on, a dissenting shareholder may give the company a written notice objecting to the resolution.
withdrawn that notice; or voted in support of the resolution.
voted against that resolution; and has complied with all of the procedural requirements of this section.
The requirement of subsection (5)(a)(i) does not apply if the company failed to give notice of the meeting, or failed to include in that notice a statement of the shareholders rights under this section.
20 business days after receiving a notice under subsection (4); or if the shareholder does not receive a notice under subsection (4), within 20 business days after learning that the resolution has been adopted.
the number and class of shares in respect of which the shareholder seeks payment; and a demand for payment of the fair value of those shares.
the company fails to make an offer in accordance with subsection (11) and the shareholder withdraws the demand; or the company 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 last day for the receipt of demands in terms of subsection (7)(a);or 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.
in respect of shares of the same class or series must be on the same terms; and lapses if it has not been accepted within 30 business days after it was made.
tendered the share certiï¬cates; or directed the transfer to the company of uncertiï¬cated shares.
failed to make an offer under subsection (11); or 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 fulï¬ls its obligations under this section.
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.
is just and equitable, having regard to the ï¬nancial circumstances of the company; and 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 ï¬nancial 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 provisions of that section; or the application by the company of the solvency and liquidity test set out in section 4.
Any right at common law of a person other than a company to bring or prosecute any legal proceedings on behalf of that company is abolished, and the rights in this section are in substitution for any such abolished right.
is a registered trade union that represents employees of the company, or another representative of employees of the company; or has been granted leave of the court to do so, which may be granted only if the court is satisï¬ed that it is necessary or expedient to do so to protect a legal right of that other person.
A company that has been served with a demand in terms of subsection (2) may apply within 15 business days to a court to set aside the demand only on the grounds that it is frivolous, vexatious or without merit.
initiate or continue legal proceedings, or take related legal steps to protect the legal interests of the company, as contemplated in the demand; or serve a notice on the person who made the demand, refusing to comply with it.
it is in the best interests of the company that the applicant be granted leave to commence the proposed proceedings or continue the proceedings, as the case may be.
there is a reasonable probability that the company may not act to prevent that harm or prejudice, or act to protect the company's interests that the applicant seeks to protect; and that the requirements of subsection (5)(b) are satisï¬ed.
reasonably believed that the decision was in the best interests of the company.
a person is a third party if the company and that person are not related or interrelated; and proceedings by or against the company include any appeal from a decision made in proceedings by or against the company.
if the order, or the order as varied, makes two or more persons liable, the order may also determine the nature and extent of the liability of each of those persons; and 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.
the company; or any other party to the proceedings or application.
An order under this section may require security for costs.
the applicant is acting in good faith; and it is appropriate to make the order in all the circumstances.
the grant of leave is taken to have been made in favour of the substituting person; and 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.
does not prevent a person from making a demand, applying for leave, or bringing or intervening in proceedings with leave under this section; and does not prejudice the outcome of any application for leave, or proceedings brought or intervened in with leave under this section; or the court may take that ratiï¬cation or approval into account in making any judgement or order.
Proceedings brought or intervened in with leave under this section must not be discontinued, compromised or settled without the leave of the court.
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 ï¬rst person, in the manner permitted by section 157.
the Companies Tribunal; or an accredited entity, as deï¬ned in subsection (3), for resolution by mediation, conciliation or arbitration.
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 certiï¬cate in the prescribed form stating that the process has failed.
is mandated, among other things, to perform mediation, conciliation or arbitration; and has been designated by the Minister in terms of subsection (5) as an accredited entity for the purposes of this Part.
reasonably require any person or association accredited by it to provide information necessary for the purpose of monitoring in terms of paragraph (b); and with reasonable notice, withdraw any accreditation granted by it in terms of this section if the person or association no longer satisï¬es the criteria set out in paragraph (a).
may designate any organ of state or other entity contemplated in subsection (3)(b) as an accredited entity for the purposes of this Part; and 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.
record the resolution of that dispute in the form of an order; and if the parties to the dispute consent to that order, submit it to a court to be conï¬rmed as a consent order, in terms of its rules.
indicate any changes that must be made to the draft order before it will be made an order of the court; or refuse to make the order.
may include an award of damages; and 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 conï¬dentiality of the parties to the consent order to do so.
with the Panel in respect of a matter contemplated in Part B or C of Chapter 5, or in the Takeover Regulations; or 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.
A complaint may be initiated directly by the Commission, or the Panel, as the case may be, on its own motion or on the request of another regulatory authority.
if they think it expedient as a means of resolving the matter, refer the complainant to the Companies Tribunal, or to an accredited entity, as deï¬ned in section 166(3), with a recommendation that the complainant seek to resolve the matter with the assistance of that agency; or direct an inspector or investigator to investigate the complaint as quickly as practicable, in any other case.
apply to a court for an order appointing an independent investigator- (aa) at the expense of the company; and (bb) to report to both the Commission or Panel, as the case may be, and the company.
named in the complaint, or related to a person named in the complaint; or whom the inspector reasonably considers may have information relevant to the investigation of the complaint.
the Commission, issue a compliance notice in terms of section 171; or the Panel, refer the matter to the Executive Director, who may, among other things, issue a compliance notice in terms of section 171.
any holder of securities, or creditor, of a company that was the subject of the report, or any other person implicated in the report, upon payment of the prescribed fee.
has contravened this Act; or assented to, was implicated in, or directly or indirectly beneï¬ted 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.
provide a community service, in the case of a notice issued by the Commission; or take any other steps reasonably related to the contravention and designed to rectify its effect.
When issuing a notice in terms of subsection (1) to a regulated person or entity, the Commission or Executive Director, as the case may be, must send a copy of the notice to the regulatory authority that granted a licence or similar authority to that regulated person or entity, and in terms of which that person is authorised to conduct business.
any steps that are required to be taken and the period within which those steps must be taken; and any penalty that may be imposed in terms of this Act if those steps are not taken.
the Companies Tribunal, or a court upon a review of the notice, in the case of a notice issued by the Commission; or the Takeover Special Committee, or a court upon a review of the notice, in the case of a notice issued by the Executive Director; or the Commission, or Executive Director, as the case may be, issues a compliance certiï¬cate contemplated in subsection (6).
If the requirements of a compliance notice issued in terms of subsection (1) have been satisï¬ed, the Commission or the Executive Director, as the case may be, must issue a compliance certiï¬cate.
apply to a court for the imposition of an administrative ï¬ne; or 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.
15 business days after receiving that notice; or 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 conï¬rm, modify or cancel all or part of a compliance notice.
If the Companies Tribunal, the Takeover Special Committee or a court conï¬rms or modiï¬es all or part of a notice, the applicant must comply with that notice as conï¬rmed or modiï¬ed, within the time period speciï¬ed 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 or appeal by a court.
record the resolution in the form of an order; and if the person who is the subject of the complaint consents to that order, apply to the High Court to have it conï¬rmed as a consent order, in terms of its rules.
Section 167(2) to (4), read with the changes required by the context, applies to an application contemplated in subsection (1).
If the Commission or Panel, as the case may be, issues a notice of non-referral in response to a complaint, the complainant concerned may apply to a court for leave to refer the matter directly to the court, but no such complaint may be referred directly to a court in respect of a person who has been excused as a respondent, as contemplated in section 170(1)(a).
require the Commission or Executive Director, as the case may be, to issue a compliance notice sufficient to address that contravention; or make any other order contemplated in this Act that is just and reasonable in the circumstances.
10% of the respondent's turnover for the period during which the company failed to comply with the compliance notice; and the maximum prescribed in terms of subsection (5).
the degree to which the respondent has co-operated with the Commission or Panel, as the case may be, and a court; and whether the respondent has previously been found in contravention of this Act.
For the purpose of this section, the annual turnover of any person, is the amount determined in the prescribed manner.
A ï¬ne 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 ï¬ne, which amount must be not less than R1 000 000.
appear before the Commission or Panel, or before an inspector or independent investigator, to be questioned at a time and place speciï¬ed in the summons; or 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 speciï¬ed in the summons.
must be signed by the Commissioner or the Executive Director, as the case may be, or by an employee of the Commission or Panel designated by the Commissioner or the Executive Director, as the case may be; and may be served in the same manner as a subpoena in a criminal case issued by the magistrate's court.
interrogate and administer an oath to, or accept an affirmation from, the person named in the summons; and 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.
a person is not obliged to answer any question if the answer is selfincriminating; and the person asking the questions must inform that person of the right set out in paragraph (a).
No self-incriminating answer given or statement made by any person to the Commission, Panel, or an inspector or independent investigator exercising powers in terms of this Act will be admissible as evidence against that person in criminal proceedings against that person instituted in any court, except in criminal proceedings for perjury or in which that person is tried for an offence contemplated in section 215(2)(e), and then only to the extent that the answer or statement is relevant to prove the offence charged.
a contravention of this Act has taken place, is taking place, or is likely to take place on or in those premises; or 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.
identify the premises that may be entered and searched; and authorise an inspector or a police officer to enter and search the premises and to do anything listed in section 178.
the purpose for issuing it has lapsed; or the expiry of one month after the date it was issued.
A warrant to enter and search may be executed only during the day, unless the judge or magistrate who issued it authorises that it may be executed at night at a time that is reasonable in the circumstances.
A person authorised by a warrant issued in terms of subsection (2) may enter and search premises named in that warrant.
provide identiï¬cation to that person and explain to that person the authority by which the warrant is being executed; and hand a copy of the warrant to that person or to the person named in it; or if none of those persons is present, affix a copy of the warrant to the premises in a prominent and visible place.
search any data contained in or available to that computer system; or reproduce any record from that data; and seize any output from that computer for examination and copying; and attach, and, if necessary, remove from the premises for examination and safekeeping, anything that has a bearing on the investigation.
any person questioned by an inspector or police officer in terms of this section; or to any answer given or statement made to an inspector or police officer in terms of this section.
An inspector authorised to conduct an entry and search in terms of section 177 may be accompanied and assisted by a police officer.
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.
During any search under section 178(1)(c), only a female inspector or police officer may search a female person, and only a male inspector or police officer may search a male person.
must advise that person of the right to be assisted at the time by an advocate or attorney; and allow that person to exercise the right contemplated in paragraph (a).
issue a receipt for it to the owner of, or person in control of, the premises; and return it as soon as practicable after achieving the purpose for which it was removed.
During a search, a person may refuse to permit the inspection or removal of an article or document on the grounds that it contains privileged information.
If the owner or person in control of an article or document refuses in terms of subsection (5) to give that article or document to the person conducting the search, the person conducting the search may request the registrar or sheriff of the High Court that has jurisdiction to attach and remove the article or document for safe custody until that court determines whether or not the information is privileged.
A police officer who is authorised to enter and search premises under section 177, or who is assisting an inspector who is authorised to enter and search premises under section 178 may overcome resistance to the entry and search by using as much force as is reasonably required, including breaking a door or window of the premises.
Before using force in terms of subsection (7), a police officer must audibly demand admission and must announce the purpose of the entry, unless it is reasonable to believe that doing so may induce someone to destroy or dispose of an article or document that is the object of the search.
The Commission may compensate anyone who suffers damage because of a forced entry during a search when no one responsible for the premises was present.
must conduct its adjudication proceedings contemplated in this Act expeditiously and in accordance with the principles of natural justice; and may conduct those proceedings informally.
the most cost-efficient and effective manner; and in accordance with the values and principles mentioned in section 195 of the Constitution.
Each organ of state must assist the Commission to maintain its independence and impartiality, and to exercise its authority and perform its functions effectively.
At the conclusion of adjudication proceedings, the presiding member must issue a decision together with written reasons for the decision.
Right to participate in hearing 5 181.
any other person who has a material interest in the hearing, unless that interest is adequately represented by another participant.
give directions prohibiting or restricting the publication of any evidence given to the Tribunal.
Tribunal may determine any matter of procedure for an adjudication hearing, with due 25 regard to the circumstances of the case.
Every person giving evidence before the Companies Tribunal at an adjudication hearing must answer any relevant question.
The law regarding a witness's privilege in a criminal case in a court of law applies 30 equally to a person who provides information during an adjudication hearing.
During an adjudication hearing, the Companies Tribunal may order a person to answer any question, or to produce any article or document, subject to subsection (4).
Section 176(4) and (5) apply to any person questioned, or any evidence given, before the Companies Tribunal in terms of this section.
Establishment of Companies and Intellectual Property Commission 40 185. (1) 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.
the Commission, is the certiï¬cate, notice, decision, determination or ruling of the Commission with respect to that matter.
the promotion of compliance with this Act, and any other applicable legislation; and the efficient, effective and widest possible enforcement of this Act, and any other legislation listed in Schedule 4.
have regard to international developments in the ï¬eld of company and intellectual property law; or 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 alleged offences in terms of this Act to the National Prosecuting Authority; and referring matters to a court, and appearing before the court or the Companies Tribunal, as permitted or required by this Act.
monitoring patterns of compliance with, and contraventions of, ï¬nancial reporting standards; and making recommendations to the Council for amendments to ï¬nancial reporting standards, to secure better reliability and compliance.
register and deregister companies, directors, business names and intellectual property rights, in accordance with relevant legislation; and perform any related functions assigned to it by legislation, or reasonably necessary to carry out its assigned registry functions.
inspect, or obtain a copy of or extract from, any document contemplated in paragraph (b) that has been converted into electronic format; or obtain a certiï¬cate contemplated in paragraph (b).
Subsection (5) does not apply to any part of a ï¬led document if that part has been determined to be conï¬dential, or contain conï¬dential information, in accordance with section 212.
that an inspection, certiï¬cate, copy or extract is required on behalf of a foreign government accredited to the Republic; and that no fees are payable in the foreign country concerned in respect of such inspection, certiï¬cate, copy or extract required on behalf of the Republic; and may waive any such fee if satisï¬ed that any inspection, certiï¬cate, copy or extract is required for the purposes of research by or under the control of an institution for higher education.
report to the Minister annually on the volume and nature of registration and enforcement activities in terms of this Act and on any other matter as prescribed by the Minister; and 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.
conducting research relating to its mandate and activities and, from time to time, publishing the results of that research; and over time, reviewing legislation and public regulations, and reporting to the Minister concerning matters relating to company and intellectual property law.
participate in the proceedings of any regulatory authority; and advise, or receive advice from, any regulatory authority.
The Commission may liaise with any foreign or international authorities having any objects similar to the functions and powers of the Commission.
the Independent Regulatory Board for Auditors any concerns regarding behaviour or conduct that may be prohibited or regulated in terms of the Auditing Profession Act; or 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.
holds office for an agreed term not exceeding ï¬ve years; and 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.
A person may be reappointed as Commissioner or Deputy Commissioner on the expiry of an agreed term of office.
all assets, and the discharge of all liabilities, of the Commission; and the proper and diligent implementation of the Public Finance Management Act, 1999 (Act No. 1 of 1999), with respect to the Commission.
assign management or other duties to employees of the Commission, who have appropriate skills to assist in the management, or control over any function of the Commission; and delegate, with or without conditions, any of the powers or functions of the Commissioner to the Deputy Commissioner or any other suitably qualiï¬ed 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.
an alleged contravention of this Act; or 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.
Commissioner on the management of the Commission's resources.
The Minister may assign speciï¬c powers to the members of a specialist committee for the purposes of performing any function contemplated in subsection (1).
be established for an indeï¬nite term, or for a period determined by the Minister when the committee is established; and determine its own procedures.
not more than eight persons who are independent from the Commission and are appointed by the Minister to serve for a period of not more than ï¬ve years, as determined by the Minister when the person is appointed; and not more than two senior employees of the Commission designated by the Commissioner.
have appropriate expertise or experience; and have the ability to perform effectively as a member of that committee.
act in any way that is inconsistent with subsection (1)(a) or expose themselves to any situation in which the risk of a conï¬ict may arise between their responsibilities and any personal ï¬nancial interest; or use their position or any information entrusted to them to enrich themselves or improperly beneï¬t any other person.
Minister terminates the person's membership because the member no longer complies with subsection (2) or has contravened subsection (3); or member's term has expired.
A member of a specialist committee who has a personal or ï¬nancial 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 mentioned in subsection (1)(b)(i), as determined by the Minister; and 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 exercise its functions in accordance with this Act; and 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 speciï¬c function.
Each organ of state must assist the Companies Tribunal to maintain its independence and impartiality, and to perform its functions effectively.
have regard to international developments in the ï¬eld of company law; or consult any person, organisation or institution with regard to any matter.
The Companies Tribunal consists of a chairperson and not less than 10 other women or men appointed by the Minister, on a full or part-time basis.
appoint the chairperson and other members of the Companies Tribunal no later than the date on which this Act comes into operation; and appoint a person to ï¬ll any vacancy on the Tribunal.
appointed as chairperson or member of the Tribunal unless the person satisï¬es the requirements of section 205; or reappointed to a second term as chairperson of the Tribunal.
persons with suitable qualiï¬cations and experience in economics, law, commerce, industry or public affairs; and sufficient persons with legal training to satisfy the requirements of subsection 3(a).
The Minister must designate a member of the Tribunal as deputy chairperson of the Tribunal.
the office of chairperson is vacant; or the chairperson is for any other reason temporarily unable to perform those functions.
Sections 206 and 207 apply to the chairperson and other members of the Tribunal.
assist in the resolution of disputes as contemplated in Part C of Chapter 7; and perform any other function assigned to it by or in terms of this Act, or any law mentioned in Schedule 4.
a member of the Tribunal, to the extent that this Act provides for a matter to be considered by a single member of the Tribunal; or a panel composed of any three members of the Tribunal, in any other case.
ensure that at least one member of the panel is a person who has suitable legal qualiï¬cations and experience; and designate a member of the panel to preside over the panel's proceedings.
direct that the hearing of that matter proceed before the remaining members of the panel, subject to the requirements of subsection (3)(a);or 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.
The decision of a panel on a matter referred to it must be in writing and include reasons for that decision.
A decision of a single member of the Companies Tribunal hearing a matter as contemplated in subsection (1)(a), or of a majority of the members of a panel in any other case, is the decision of the Tribunal.
An decision by the Companies Tribunal with respect to a decision, notice or order by the Commission is binding on the Commission, subject to any review by the court.
An order of the Companies Tribunal may be ï¬led in the High Court as an order of the court, in accordance with its rules.
A member of the Tribunal may not represent any person before the Tribunal.
If, on the expiry of the term of office of a member of the Companies Tribunal, that member is still considering a matter before the Tribunal, that member may continue to act as a member in respect of that matter only.
The Takeover Regulation Panel 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.
Each organ of state must assist the Panel to maintain its independence and impartiality, and to exercise its authority and perform its functions effectively.
three persons designated by each exchange named for the purpose by the Minister by notice in the Gazette; and 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.
At any time, the Panel may co-opt additional members for a particular purpose and a limited period.
must have the qualiï¬cations, and satisfy the further requirements set out in section 205; and are subject to the provisions of sections 206 and 207.
appointed in terms of subsection (1)(d), serve for a term not exceeding ï¬ve years, as determined by the Minister at the time the person is appointed; or co-opted in terms of subsection (2), serve until the completion of the purpose for which they were co-opted.
A person whose term of service as a member of Panel has expired may be designated, appointed or co-opted to serve for a further term, or terms without limit, subject to the requirements of subsection (3) and section 205.
one of the members of the Panel to be the chairperson of the Panel; and two of its members to be deputy chairpersons of the Panel.
Either deputy chairperson may exercise and perform the powers and duties of the chairperson whenever the chairperson is unable to do so or while the office of chairperson is vacant.
may determine the date, time and place for meetings of the Panel; and presides at meetings of the Panel, if present.
In the absence of the chairperson, and both deputy chairpersons, at a meeting of the Panel the members present may choose one of their number to preside at the meeting.
The Takeover Regulations must determine the quorum for a meeting of the Panel.
The member presiding at a meeting of the Panel may determine the procedure at the meeting.
The decision of a majority of the members of the Panel present at any meeting at which there is a quorum is the decision of the Panel.
the member presiding at the meeting may cast a deciding vote, if that presiding member did not initially have or cast a vote; or the matter being voted on fails, in any other case.
Proceedings of the Panel are valid despite any vacancy that existed on the Panel at the time, or the absence of any member during any part of those proceedings.
The Panel may delegate the exercise of any of its powers or performance of any of its functions to the chairperson, any member of the Executive as contemplated in terms of section 200, any committee that the Panel may establish, or any member of the Panel.
an Executive Director; and one or more deputy Executive Directors, on terms and conditions determined by the Panel.
this Act and the Takeover Regulations; and the policies and direction of the Panel; and appoint other officers and employees as are required for the proper performance of functions of the Panel.
A deputy Executive Director may perform any function of the Executive Director when the office of the Executive Director is vacant, or when the Executive Director is absent or is for any reason unable to perform the functions of that office.
apply for a court order to wind up a company, in the manner contemplated in section 81(1)(f); and consult with the Minister in respect of additions, deletions or amendments to the Takeover Regulations.
receive and deal with representations relating to any matter with which it may deal in terms of this Act; and perform any other function assigned to it by legislation.
In exercising its powers and performing its functions the Panel must not express any view or opinion on the commercial advantages or disadvantages of any transaction or proposed transaction.
There is hereby established a committee of the Panel, to be known as the Takeover Special Committee.
a chairperson, who must be an attorney or advocate whether practicing or not; and 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).
any matter referred to it by the Panel; and any matter that the Executive Director, or a deputy Executive Director acting in the capacity of the Executive Director, may refer to it; and review compliance notices issued by the Executive Director, or a deputy Executive Director acting in the capacity of the Executive Director.
Subject to this Act and the Takeover Regulations, the chairperson of the Takeover Special Committee may determine the procedure relating to any hearing of any matter referred to the Takeover Special Committee.
The decision of a majority of the members of the Takeover Special Committee is the decision of the Takeover Special Committee.
one person nominated by the executive officer of the Financial Services Board as deï¬ned in section 1 of the Financial Services Board Act, 1990 (Act No.
one person nominated by the Governor of the South African Reserve Bank, or any successor body to it; and a number of persons, nominated one each by any exchange that imposes adherence to ï¬nancial reporting standards as a listing requirement each of whom must be appointed by the Minister, to serve for a term of three years.
with the qualiï¬cations, knowledge and experience necessary to further the functions of the Council; and appoint the chairperson and deputy chairperson of the Council.
must satisfy the requirements of section 205; and are subject to sections 206 and 207.
A person may be reappointed to the Council, subject to section 205.
The Minister may require the Council to be a member of a relevant international accounting standards setting organisation.
advise the Minister on matters relating to ï¬nancial reporting standards; and consult with the Minister on the making of regulations establishing ï¬nancial reporting standards, subject to the requirements set out in section 29(5).
not be subject to any disqualiï¬cation set out in subsection (2); and have submitted to the Minister a written declaration stating that the person is not disqualiï¬ed in terms of subsection (2).
is disqualiï¬ed in terms of section 69 from serving as a director of a company; or is subject to an order of a competent court holding that person to be mentally unï¬t 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 ï¬nancial interest that is, or is likely to become, an interest contemplated in section 205(2)(b).
the Financial Intelligence Centre established by the Financial Intelligence Centre Act, 2001 (Act No.
as otherwise required as part of that person's official functions as a member of the Companies Tribunal, the Panel or the Council.
immediately and fully disclose the nature of that interest to the meeting; and 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.
The disclosure by a person in terms of subsection (3)(a), and the decision by the Companies Tribunal, the Panel, or the Council in terms of subsection (3)(b), must be expressly recorded in the minutes of the meeting in question.
a member failed to disclose an interest as required by subsection (3); or a member who had such an interest attended those proceedings, participated in them in any way, or directly or indirectly inï¬uenced those proceedings.
one month written notice; or less than one month written notice, with the approval of the Minister.
A member of the Panel may resign by giving written notice jointly to the Minister and the relevant entity responsible for the designation of that member, if any.
failed to disclose an interest or withdraw from a meeting as required by section 206(3); or neglected to properly perform the functions of their office.
Before removing a person from office in terms of subsection (3), the Minister must afford the person an opportunity to state a case in defence of their position.
make private use of, or proï¬t from, any conï¬dential information obtained as a result of performing that person's official functions in the Commission or panel; or 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.
may each appoint any suitable employee of the Commission or Panel, as the case may be, or any other suitable person employed by the State, as an inspector; and must issue each inspector with a certiï¬cate in the prescribed form stating that the person has been appointed as an inspector in terms of this Act.
set out in Part E of Chapter 7; and of a peace officer as deï¬ned 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 qualiï¬ed 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.
The Minister, with the concurrence of the Minister of Finance, may determine the remuneration to be paid to a person appointed in terms of this section, if that person is not in the full-time service of the Commission or Panel, as the case may be.
income derived from their respective investment and deposit of surplus money in terms of subsection (2); and other money accruing from any source.
begins on the date that the section of this Act establishing that entity came into operation; and 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, beneï¬ts, and conditions of appointment of each employee of the Commission or Panel, as the case may be.
At least once every ï¬ve 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.
In addition to any other reporting requirement set out in this Act, the Commission, Tribunal, Council and Panel must each report to the Minister at least once every year on its activities, as required by the Public Finance Management Act, 1999 (Act No. 1 of 1999).
As soon as practicable after receiving a report of a review contemplated in subsection (1), or after receiving a report contemplated in subsection (2), the Minister must table it in Parliament.
a prospectus, or a written statement contemplated in section 101, that contained an 'untrue statement' as deï¬ned and described in section 95.
the document includes or is otherwise based on a scheme, structure or form of words or numbers devised, prepared or recommended by that person; and 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 ï¬ne in respect of that person's failure to comply with that notice.
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 conï¬dential.
Any claim contemplated in subsection (1) must be supported by a written 5 statement explaining why the information is conï¬dential.
as soon as practicable, make a decision on the conï¬dentiality of the 10 information and access to that information, and provide written reasons for that decision.
Section 172, read with the changes required by the context, applies to a decision in terms of subsection (3).
When making any ruling, decision or order in terms of this Act, the Commission, 15 the Panel, the Companies Tribunal or the Council may take conï¬dential information into account.
If any reasons for a decision in terms of this Act would reveal any conï¬dential 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 20 conï¬dentiality at least ï¬ve business days before publishing those reasons.
Within ï¬ve 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 conï¬dentiality of the relevant information.
as a result of initiating a complaint, or participating in any proceedings in terms of this Act.
when required to do so by any court or under any law.
It is an offence to hinder, obstruct or improperly attempt to inï¬uence 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.
enters or searches premises; or attaches or removes an article or document.
in the case of a contravention of section 213(1) or 214(1), to a ï¬ne or to imprisonment for a period not exceeding 10 years, or to both a ï¬ne and imprisonment; or in any other case, to a ï¬ne or to imprisonment for a period not exceeding 12 months, or to both a ï¬ne and imprisonment.
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.
Nothing in this Act renders void an agreement, resolution or provision of an agreement, resolution, Memorandum of Incorporation or rules of a company that is prohibited, void, voidable or may be declared unlawful in terms of this Act, unless a court declares that agreement, resolution or provision to be void.
Any person who contravenes any provision of this Act is liable to any other person for any loss or damage suffered by that person as a result of that contravention.
The provisions of this section do not affect the right to any remedy that a person may otherwise have.
the act or omission that is the cause of the complaint; or in the case of a course of conduct or continuing practice, the date that the conduct or practice ceased.
A complaint may not be prosecuted in terms of this Act against any person that is, or has been, a respondent in proceedings under another section of this Act relating substantially to the same conduct.
delivered to that person; or sent by registered mail to that person's last known address.
In any proceedings in terms of this Act, if it is proved that a false statement, entry or record or false information appears in or on a book, document, plan, drawing or computer storage medium, the person who kept that item must be presumed to have made the statement, entry, record or information, unless the contrary is proved.
A statement, entry or record, or information, in or on any book, document, plan, drawing or computer storage medium is admissible in evidence as an admission of the facts in or on it by the person who appears to have made, entered, recorded or stored it unless it is proved that that person did not make, enter, record or store it.
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 ï¬de act or omission relating to the performance of any duty under this Act, unless gross negligence is proved.
any forms required to be used for the purposes of this Act; and in general, any ancillary or incidental matter that is necessary for the proper implementation and administration of this Act.
Before making any regulations in terms of this Act, the Minister must publish the proposed regulations for public comment, subject to subsection (3).
In the case of regulations prescribing ï¬nancial reporting standards as contemplated in section 29(4)(a), the provisions of subsection (2) do not apply.
A regulation in terms of this Act must be made by notice in the Gazette.
The Companies Act, 1973 (Act No. 61 of 1973), is hereby repealed, subject to subsection (3).
The laws referred to in Schedule 3 are hereby amended in the manner set out in that Schedule.
The repeal of the Companies Act, 1973 (Act No. 61 of 1973), does not affect the transitional arrangements, which are set out in Schedule 5.
This Act is called the Companies Act, 2008, and comes into operation on a date ï¬xed by the President by proclamation in the Gazette, which may not be earlier than one year following the date on which the President assented to this Act.
an object relating to one or more cultural or social activities, or communal or group interests; and be consistent with the principles set out in subitems (2) to (9).
acquire and hold securities issued by a proï¬t company; or directly or indirectly, alone or with any other person, carry on any business, trade or undertaking consistent with or ancillary to its stated objects.
as a payment in respect of any rights of that person, to the extent that such rights are administered by the company in order to advance a stated object of the company; or in respect of any legal obligation binding on the company.
by the court, if the Memorandum of Incorporation, or the members or directors fail to make such a determination.
make a determination contemplated in subitem (4)(b)(ii)(bb);or apply to the court for such a determination.
Incorporation as a non-proï¬t company in terms of this Act, or registration as an external non-proï¬t company in terms of this Act, and compliance by either with the provisions of this Act does not necessarily qualify that non-proï¬t company, or external non-proï¬t company, for any particular status, category, classiï¬cation 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-proï¬t company has at least one vote.
The vote of each member of a non-proï¬t 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-proï¬t 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.
amalgamate or merge with, or convert to, a proï¬t company; or dispose of any part of its assets, undertaking or business to a proï¬t 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-proï¬t company.
dispose of all or the greater party of its assets or undertaking; or amalgamate or merge with another non-proï¬t company, must be submitted to the voting members for approval, in a manner comparable to that required of proï¬t 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 subitem (2).
its ï¬rst members, if its Memorandum of Incorporation provides for it to have members.
A non-proï¬t company is not required to have members, but its Memorandum of Incorporation may provide for it to do so.
the rights and obligations, if any, of membership in any class; and the grounds on which membership may, or will, be suspended or lost.
set out the basis on which the members choose the directors of the company; and 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-proï¬t 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-proï¬t company must not provide a loan to, secure a debt or obligation of, or otherwise provide direct or indirect ï¬nancial 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 to defray the person's expenses for removal at the company's request; or is in terms of an employee beneï¬t scheme generally available to all employees or a speciï¬c class of employees.
A close corporation may ï¬le a notice of conversion in the prescribed manner and form, at any time.
Section 14, read with the changes required by the context, applies with respect to the ï¬ling of a notice of conversion, as if it were a Notice of Incorporation in terms of this Act.
cancel the registration of that close corporation in terms of the Close Corporations Act, 1984 (Act No.
give notice in the Gazette of the conversion of a close corporation into a company; and 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. 69 of 1984), for conduct occurring before the date of registration, may be brought against the company on the same basis, as if the conversion had not occurred; and 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.
Act No. 69 of 1984 Close Corporations Act, 1984 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. Section 1 of the Close Corporations Act is hereby amended by- (a) the insertion before the deï¬nition of ''Companies Act'' of the following deï¬nition: '' 'Commission' means the Companies and Intellectual Property Commission, established by section 185 of the Companies Act;''; (b) the substitution for the deï¬nition of ''Companies Act'' of the following deï¬nition: '' 'Companies Act' means the Companies Act, [1973 (Act No.
the substitution for the deï¬nition of 'subsidiary' of the following deï¬nition: '' 'subsidiary', in relation to a company, [means a subsidiary as deï¬ned in section 1(1)] has the meaning determined in accordance with section 3 of the Companies Act.''; and (j) the substitution for the deï¬nition of ''this Act'' of the following deï¬nition: '' '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.''.
Amendment of section 13 of Act 69 of 1984 (2) Section 13 of the Close Corporations Act is hereby substituted for the following section: ''Registration of founding statement 13. 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.''.
Repeal of section 27 of Act 69 of 1984 (3) 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.
Amendment of section 2 of Act 69 of 1984 (1) Section 2 of the Close Corporations Act is hereby amended by the substitution for subsection (2) of the following subsection: ''(2) A corporation formed in accordance with the provisions of this Act is on registration in terms of those provisions a juristic person and continues, subject to the provisions of this Act, to exist as a juristic person notwithstanding changes in its membership, or its conversion to a company in terms of Schedule 2 of the Companies Act, until it is [in terms of this Act] deregistered or dissolved- (a) in terms of this Act; or (b) in terms of the Companies Act, in the case of a juristic person that has been converted to a company.''.
Amendment of section 19 of Act 69 of 1984, as substituted by section 5 of Act 26 of 1997 (1) Section 19 of the Close Corporations Act is hereby amended by the substitution of the following section: ''Undesirable names and reservation of names 19. (1) [No founding statement containing a name for a corporation to be incorporated and no amended founding statement containing a new name for a corporation shall be registered if the name is in the opinion of the Registrar undesirable] Part A of Chapter 2 of the Companies Act, read with the changes required by the context, applies to a corporation and to an applicant for name reservation in terms of subsection (2), but- (a) 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; and (b) the application of section 11(4) of the Companies Act to a corporation is subject to the provisions of section 22(1) of this Act. (2) 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].'
Amendment of section 20 of Act 69 of 1984, as inserted by section 3 of Act 81 of 1992 and substituted by section 8 of Act 22 of 2001 (2) Section 20 of the Close Corporations Act is hereby amended by the substitution of the following subsection: ''[Order to change name] Objections to names 20. Sections 14(4), 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.''.
Amendment of section 22 of Act 69 of 1984, as amended by section 6 of Act 26 of 1997 (3) Section 22(2) and (4) of the Close Corporations Act is hereby repealed.
Amendment of section 23 of Act 69 of 1984, as amended by section 5 of Act 81 of 1992, section 8 of Act 26 of 1997 and section 9 of Act 22 of 2001 (4) The Close Corporations Act is hereby amended by the substitution for section 23 of the following section: ''Use and publication of names 23. 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.''.
Repeal of section 41 of Act 69 of 1984 (5) 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.''.
Amendment of section 47 of Act 69 of 1984, as amended by section 11 of Act 26 of 1997, section 13 of Act 22 of 2001 and substituted by section 36 of Act 12 of 2004 (2) Section 47 of the Close Corporations Act is amended by- (a) the repeal of subparagraphs (ii) and (iii) of paragraph (b) of subsection(1); (b) the substitution for paragraph (c) of subsection (1) the following paragraph: ''(c) any person who is [subject to any order of a court under] disqualiï¬ed 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].''; and (c) the insertion of the following subsections after subsection (a): ''(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. (1B) Despite being disqualiï¬ed in terms of section 69(8)(b) of the Companies Act, read with subsection (1)(c),a person may participate in the management of a corporation if 100% of the members' interest in the corporation is held by- (a) that person; or (b) that person and other persons, all of whom are related to that disqualiï¬ed person, and each such person has consented in writing to that disqualiï¬ed person participating in the management of the corporation. (1C) Section 162 of the Companies Act, read with the changes required by the context, applies to a corporation, but a reference in that section to- (a) a company must be regarded as referring to a company or a corporation; or (b) a director, must be regarded as referring to a director of a company, or a member participating in the management of a corporation.''.
Repeal of section 55 of Act 69 of 1984 (3) Section 55 of the Close Corporations Act is hereby repealed.
Amendment of section 58 of Act 69 of 1984, as substituted by section 12 of Act 38 of 1986 and amended by section 4 of Act 64 of 1988 (4) Section 58 of the Close Corporations Act is hereby amended by- (a) the substitution for subsection (1) of the following subsection: ''(1) The members of a corporation shall within [nine] six months after the end of every ï¬nancial year of the corporation cause annual ï¬nancial statements in respect of that ï¬nancial year to be made out in one of the official languages of the Republic. (b) the insertion, of the following subsection after subsection (2), ''(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 ï¬nancial statements audited.
Amendment of section 62 of Act 69 of 1984, as amended by section 13 of Act 38 of 1986 and section 4 of Act 17 of 1990 (5) Section 62 of the Close Corporations Act is hereby amended by the insertion of the following section after section 62: ''Application of accountability provisions of Companies Act 62A. (1) Section 34(2) of the Companies Act, read with the changes required by the context, apply to a corporation. (2) Chapter 3 of the Companies Act, read with the changes required by the context- (a) applies to a corporation that has voluntarily determined to take any action contemplated in section 34(2) of the Companies Act; and (b) prevails over any conï¬icting provision of this Act, with respect to a corporation contemplated in paragraph (a).''.
Amendment of section 66 of Act 69 of 1984, as substituted by section 16 of Act 26 of 1997 (1) Section 66 of the Close Corporations Act is hereby amended by the insertion of the following subsection after subsection (1): ''(1A) The provisions of Chapter 6 of the Companies Act, read with the changes required by the context, apply to a corporation, but any reference in that Chapter to- (a) a company must be regarded as a reference to a corporation; or (b) 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.''.
Amendment of section 66 of Act 69 of 1984, as substituted by section 16 of Act 26 of 1997 (1) Section 66 of the Close Corporations Act is hereby amended by the substitution for subsection (1) of the following subsection: ''(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 speciï¬cally provided for in this Part or in any other provision of this Act.''.
Amendment of section 67 of Act 69 of 1984 (2) Section 67 of the Close Corporations Act is hereby substituted for the following section- ''Dissolution of corporations 67. (1) Part G of Chapter 2 of the Companies Act, read with the changes required by the context, applies to a solvent corporation. (2) 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.''.
Repeal of 68 of Act 69 of 1984 (3) Section 68 of the Close Corporations Act is hereby repealed.
Amendment of section 26 of Act 69 of 1984, as amended by section 6 of Act 38 of 1986, section 14 of Act of 22 of 2001, section 9 of Act 39 of 2002 and section 62 of Act 24 of 2001 (1) Section 26 of the Close Corporations Act is hereby, substituted for the following section: ''Deregistration 26. 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.''.
Repeal of section 3(1) of Act 69 of 1984 (2) Section 3(1) of the Close Corporations Act is hereby repealed.
Amendment of section 4 of Act 69 of 1984 (3) Section 4 of the Close Corporations Act is hereby amended by- (a) the substitution for subsection (1) of the following subsection: ''(1) [The Minister shall, subject to the laws governing the public service, appoint a Registrar of Close Corporations, who shall] The Commission- (a) may exercise the powers and must perform the duties assigned to the Registrar by this Act; and (b) [subject to the directions of the Minister, be] is responsible for the administration of the Registration Office.''; (b) the repeal of subsection (2); and (c) the substitution for subsection (3) of the following subsection: ''(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.''.
Repeal of sections 11 and 16 of Act 69 of 1984 (4) Sections 11 and 16(3) of the Close Corporations Act are hereby repealed.
Repeal of sections 47(7), 49(5) and 58(4) of Act 69 of 1984 (5) Sections 47(2), 49(5) and 58(4) of the Close Corporations Act are hereby repealed.
Amendment of section 64 of Act 69 of 1984 (6) Section 64 of the Close Corporations Act is hereby amended by the substitution for subsection (2) of the following subsection: ''(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.''.
Amendment of section 82 of Act 69 of 1984 (7) Section 82 of the Close Corporations Act is hereby substituted for the following section: ''Application of Companies Act to enforcement of Act 82. 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.''.
Act No. 62 of Registration of Amendment of section 1 of Act 62 of 1977 1977 Copyright in Cinematograph ï¬lms Act, 1977 1.
Repeal of section 2 of Act 62 of 1977 2.
Cinematograph Films Act, 1977, is hereby repealed.
Amendment of section 3 of Act 62 of 1977 3.
''(1) The Commission may exercise the powers and must perform the duties assigned to the regis trar by this Act and is responsible for the admin istration 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] Com mission.
Act No. 57 of 1978 Patents Act, 1978 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. Section 2 of the Patents Act, 1993, is hereby amended by- (a) the insertion after the deï¬nition of ''application in a convention country'' of the following deï¬nition: '' 'Commission' means the Companies and Intellectual Property Commission, established by section 185 of the Companies Act, 2008''; (b) by the substitution for the deï¬nition of ''patent office'' of the following deï¬nition: '' 'patent office' means the [patent office established in terms of section 5] office of the Commission; and (c) by the substitution for the deï¬nition of ''registrar'' of the following deï¬nition: '' 'registrar' means the [registrar of patents appointed under section 7] Commissioner, appointed in terms of section 189 of the Companies Act, 2008;''; 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. Section 7 of the Patents Act, 1978, is hereby amended by- (a) the substitution for subsection (1) of the following subsection: ''(1) The [Minister shall, subject to the laws governing the public service, appoint a registrar of patents, who shall] Commission- (a) may exercise the powers and must perform the duties conferred or imposed upon the registrar by this Act; and (b) [and who shall, subject to the directions of the Minister, have the chief control] is responsible for the administration of the patent office. (b) by the repeal of subsection (2); (c) by the substitution for subsection (3) of the following subsection: ''(3) The Commission may delegate any of the powers and entrust any of the duties assigned to the registrar by this Act, to any ofï¬cer or employee in the Commission.'
1978 1978 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. Section 1 of the Copyright Act, 1978, is hereby amended by the substitution for the deï¬nition of ''Registrar'' of the following deï¬nition: '' 'Registrar' means the [Registrar of Copyright, who shall be the person appointed as Registrar of Patents under section 7 of the Patents Act, 1978] Commissioner appointed in terms of section 189 of the Companies Act, 2008;''.
Act No. 59 of 1980 Share Blocks Control Act, 1980 Amendment of section 1 of Act 59 of 1980 1. Section 1 of the Share Blocks Control Act, 1980, is hereby amended by- (a) the substitution for the deï¬nition of ''Companies Act'' of the following deï¬nition: '' 'Companies Act' means the Companies Act, [1973 (Act No. 61 of 1973)] 2008;''; and (b) the insertion after the deï¬nition of purchaser' of the following deï¬nition: '' 'Registrar' means the Commissioner, appointed in terms of section 189 of the Companies Act;''.
Act No. 194 of 1993 Trade Marks Act, 1993 Amendment of section 2 of Act 194 of 1993 1. Section 2 of the Trade Marks Act, 1993, is hereby amended by- (a) the insertion after the deï¬nition of ''collective trade mark'' of the following deï¬nition: '' 'Commission' means the Companies and Intellectual Property Commission, established by section 185 of the Companies Act, 2008''; (b) the substitution for the deï¬nition of ''registrar'' of the following deï¬nition: 'registrar' means the [registrar of trade marks appointed or deemed to have been appointed under section 6] Commissioner, appointed in terms of section 189 of the Companies Act, 2008;''; and (c) the insertion after the deï¬nition of ''trade mark'' of the following deï¬nition: '' '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. Section 6 of the Trade Marks Act, 1993, is hereby amended by- (a) the substitution for subsection (1) of the following subsection: ''(1) The Commission- (a) may exercise the powers and must perform the duties conferred or imposed upon the registrar by this Act; and (b) is responsible for the administration of the trade marks office.''. (b) the repeal of subsections (2) and (4).
Act No. 195 of 1993 Designs Act, 1993 Amendment of section 1 of Act 195 of 1993 as amended by section 69 of Act 38 of 1997 1. Section 1 of the Designs Act, 1993, is hereby amended by- (a) the insertion after the deï¬nition of ''article'' of the following deï¬nition: '' 'Commission' means the Companies and Intellectual Property Commission, established by section 185 of the Companies Act, 2008;''; (b) the substitution for the deï¬nition of ''designs ofï¬ce'' of the following deï¬nition: '' 'designs office' means the [designs office referred to in section 4] office of the Commission; (c) by the substitution for the deï¬nition of ''registrar'' of the following deï¬nition: '' 'registrar' means the [registrar of designs appointed or deemed to have been appointed under section 6] Commissioner, appointed in terms of section 189 of the Companies Act, 2008;''; 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. Section 6 of the Designs Act, 1993 is hereby amended by- (a) the substitution for subsection (1) of the following subsection: ''(1) The [Minister shall, subject to the laws governing the public service, appoint a registrar of designs, who shall] Commission- (a) may exercise the powers and must perform the duties conferred or imposed upon the registrar by this Act; and (b) [and who shall, subject to the directions of the Minister, have the chief control] is responsible for the administration of the designs office.
by the repeal of subsections (2) and (3); (c) by the substitution for subsection (4) of the following subsection: ''(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.'
Act No. 14 of 2005 Co-operatives Act, 2005 Amendment of section 1 of Act 14 of 2005 1. Section 1 of the Co-operatives Act, 2005, is hereby amended by- (a) the insertion after the deï¬nition of 'agricultural co-operative' of the following deï¬nitions: '' 'Commission' means the Companies and Intellectual Property Commission, established by section 185 of the Companies Act; 'Companies Act' means the Companies Act, 2008; (b) the deletion of the deï¬nitions of ''deputy registrar'' and ''Director-General''; and (c) by the substitution for the deï¬nition of ''registrar'' of the following deï¬nition: '' '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. Section 78 of the Co-operatives Act, 2008, is hereby amended by- (a) by the substitution for subsection (1) of the following subsection: ''(1) The [Minister] Commission- (a) [must appoint an officer in the public service as the Registrar of Co-operatives, with the authority to] may exercise the powers and must perform the functions conferred on the registrar by or in terms of this Act; (b) the repeal of subsection (1)(b) and (c); (c) the substitution for subsection (2) of the following subsection: ''(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.
Share Blocks Control Act, 1980 (Act No.
Co-operatives Act, 2005 (Act No.
Copyright Act, 1978 (Act No.
Performers Protection Act, 1967 (Act No.
Registration of Copyright in Cinematograph Films Act, 1977 (Act No.
Counterfeit Goods Act, 1977 (Act No.
Designs Act, 1993 (Act No.
Merchandise Marks Act, 1941 (Act No.
Patents Act, 1978 (Act No.
Trade Marks Act, 1993 (Act No.
Unauthorised Use of Emblems Act, 1961 (Act No.
''Vlaglied'' Copyright Act, 1974 (Act No.
Protection of Businesses Act, 1987 (Act No.
''previous Act'' means the Companies Act, 1973 (Act No. 61 of 1973).
the previous Act, if the number is followed by the words ''of the previous Act''; or this Act, in any other case; or to an item or a subitem by number is a reference to the corresponding item or subitem of this Schedule.
the Commission may not perform that particular function or exercise that particular power; and 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.
incorporated or registered in terms of the Companies Act, 1973 (Act No.
(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.
Any matter ï¬led with the Registrar under the Companies Act, 1973 (Act No. 61 of 1973), before the effective date and not fully addressed at that time, must be concluded by the Registrar in terms of that Act, despite its repeal.
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), ï¬led 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.
have been registered in terms of the previous Act; and be a pre-existing company for all purposes of this Act.
may ï¬le a notice within 20 business days after the general effective date electing to become a proï¬t company, as from the general effective date, and to change its name in so far as required to comply with section 11(3)(b);or if it fails to ï¬le 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-proï¬t company, and have changed its name in so far as required to comply with section 11(3)(b).
an amendment to its Memorandum of Incorporation to bring it in harmony with this Act; and 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.
as of the general effective date, for a period of two years, or until changed by the company; and after the two year period, to the extent that they are consistent with this Act.
inconsistent with this Act; but consistent with that company's Memorandum of Incorporation.
Section 21 does not apply with respect to a pre-existing company.
Section 35(2) does not apply to a bank, as deï¬ned 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 ï¬nancial matters.
Despite section 35(2) any shares of a pre-existing company that have been issued with a nominal or par value, and are held by a shareholder immediately before the effective date, continue to have the nominal or par value assigned to them when issued, subject to any regulations made in terms of subitem (3).
preserve the rights of shares holders associated with such shares, as at the effective date, to the extent doing so is compatible with the purposes of this item; or provide for the company to compensate its shareholders for the loss of any such rights.
is not a contravention of that section; and does not invalidate that share certiï¬cate.
A person holding office as a director, prescribed officer, company secretary or auditor of a preexisting 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.
A person contemplated in subitem (1) who, in terms of this Act, is ineligible to be, or disqualiï¬ed from being a director, company secretary or auditor, is regarded to have resigned that office as from the effective date.
the minimum number of directors required by or in terms of this Act; and the actual number of directors of that pre-existing company immediately before the general 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 or (3), or otherwise, is to be ï¬lled in accordance with this Act.
Chapter 5 applies as from the effective date to every pre-existing company, except to the extent it is exempted by or in terms of that Chapter.
Approval of any distribution, ï¬nancial 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.
A right of any person to seek a remedy in terms of this Act applies with respect to conduct pertaining to a pre-existing company and occurring before the effective date, unless the person had commenced proceedings in a court in respect of the same conduct before the effective date.
the company disposed of that record before the effective date; and at the time the company disposed of the record it was not required, by or in terms of any public regulation, to continue to maintain that record; or 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.
A provision of the Memorandum of Incorporation of a pre-existing company comparable to a provision contemplated in section 15(2) has the same validity after the effective date that it had immediately before that date, despite any failure of the company to have drawn attention to that provision in the manner required by section 13(3).
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 ï¬les a notice of that provision.
Any reservation by the Registrar of a name in terms of section 42 of the previous Act that was in effect immediately before the effective date, is regarded as having been a reservation in terms of section 12 of this Act, as from the effective date, subject to subitem (2).
the Commission must notify the person for whose use the name was reserved, inviting the person to request the reservation of a substitute name that does satisfy the requirements of this Act; and the person concerned may ï¬le a request contemplated in paragraph (a),atno charge, any time within 120 business days after the date of the Commission's notice.
the date the name is used by a company incorporated by the person for who the name has been reserved; or the second anniversary of the general effective date.
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).
Despite subitem (1), sections 343, 344, 346, and 348 to 353 do not apply to the winding-up of a solvent company, except to the extent necessary to give full effect to the provisions of Part G of Chapter 2.
If there is a conï¬ict 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.
determine a date on which this item ceases to have effect, but no such notice may be given until the Minister is satisï¬ed that alternative legislation has been brought into force adequately providing for the winding-up and liquidation of insolvent companies; and 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 proceedings in any court in terms of the previous Act immediately before the effective date are continued in terms of that Act, as if it had not been repealed.
Any order of a court in terms of the previous Act, and in force immediately before the effective date, continues to have the same force and effect as if that Act had not been repealed, subject to any further order of the court.
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 fulï¬lled 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 ï¬rst arose, subject to the provisions of this Act.
A notice given by any person to another person in terms of any provision of the previous Act must be considered as notice given in terms of any comparable provision of this Act, as from the date that the notice was given under the previous Act.
A document that, before the effective date, had been served in accordance with the previous Act must be regarded as having been satisfactorily served for any comparable purpose of this Act.
An order given by an inspector, in terms of any provision of the previous Act, and in effect immediately before the effective date, continues in effect, subject to the provisions of this Act.
The person who occupied the post of chief executive officer of the Companies and Intellectual Property Registration Office immediately before the general effective date, must be regarded as having been appointed on the general effective date as the Commissioner in terms of section 189, for a term to be determined by the Minister.
A person in the employ of the Companies and Intellectual Property Registration Office or the Office of Companies and Intellectual Property Enforcement in the Department of Trade and Industry becomes an employee of the Commission on the effective date.
section 197 of the Labour Relations Act, 1995 (Act No. 66 of 1995); and 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 subitem (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.
remains a member of the Government Employees'Pension Fund mentioned in section 2 of the Government Employees' Pension Law, 1996 (Act No. 21 of 1996); and is entitled to pension and retirement beneï¬ts as if that person were in service in a post classiï¬ed 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).
all ï¬nancial, administrative and other records of the Company and Intellectual Property Registration Office, including all relevant documents in the possession of that office immediately before the effective date, are transferred to the Commission; and 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.
the terms and conditions of office or employment of a person contemplated in this subitem are identical to the terms and conditions of office or employment subsisting between that person and the Securities Regulation Panel immediately before the general effective date, 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); and 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).
resigns from an office in, or terminates that person's employment by, the Panel; and 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 ï¬rst time.
The registers of companies, external companies, reserved names, and delinquent directors, respectively, as maintained by the Companies and Intellectual Property Registration Office in terms of the previous Act are each continued as the register of companies, external companies, reserved names, and directors, respectively, required to be established by the Commission in terms of this Act.
the Commission may exercise any power of the Registrar, or the Panel may exercise any power of the Securities Regulation Panel, in terms of the previous Act to investigate and prosecute any breach of that Act that occurred during the period of three years immediately before the effective date, subject to subitem (2); and a court may make any order that could have been made in the circumstances by a court under that Act.
In exercising authority under subsection (1), the Commission or Panel, respectively, must conduct the investigation or other matter in accordance with the previous Act.
On the effective date, and for a period of 60 business days after the effective date, the Minister may make any regulation contemplated in this Act without meeting the procedural requirements set out in section 223 or elsewhere in this Act, provided the Minister has published those proposed regulations in the Gazette for comment for at least 30 business days.