Business (Not) as Usual

REPERCUSSIONS OF THE NEW COMPANIES ACT

The Companies Act No. 71 of 2008 (‘the new Act’) came into effect on 1 May 2011. The new Act has modernised and simplified South African company law and has been brought into line with international best practices and other South African legislation. It has changed the face of company law in South Africa with increased accountability and transparency, the phasing out of Close Corporations and a new set of auditing requirements. One of the major changes brought about by the new Act is that no new Close Corporations (CCs) may be registered. CCs already existing before 1 May 2011 may continue to operate. However, the new Act and amendments to the Close Corporation Act No. 69 of 1984 (‘the CC Act’) allow CCs to be converted into private companies. There are many reasons why it is advisable to convert a CC into a small private profit company. All CCs have to meet the requirements of the CC Act and certain sections of the new Act which places an onerous strain on the CC. The new Act distinguishes the rights and duties of shareholders from those of directors whereas the CC Act does not separate the rights and duties of owners and managers where they are both members of the CC. Furthermore, the enhanced accountability and transparency requirements of the new Act promote a new level of corporate governance responsibility of shareholders and directors of companies, a concept with which the outdated CC Act is unfamiliar.

Auditing requirements have undergone a complete transformation with the new Act. A Public Interest Score (PI Score) has been formulated to assess whether a close corporation or company requires an audit or independent review and which financial reporting standards apply. The PI Score considers factors such as the average number of employees, total turnover and total outstanding third party liabilities. It is important to conduct a PI Score assessment before converting your company constitution or registering a new company so that you are aware of what is required of your company.

Under the old Companies Act, companies were governed by a Memorandum of Articles and Articles of Association. The new Act has introduced a single, comprehensive document known as the Memorandum of Incorporation (MOI).

A transitional period of two years ran from 1 May 2011 until 1 May 2013 wherein the Companies and Intellectual Property Commission (CIPC) waived the official lodgement fees to encourage companies existing prior to the effective date to amend their company constitution in line with the new Act.

Where a company existing prior to 1 May 2011 did not adopt a MOI by 30 April 2013, its existing constitution is deemed to be its MOI and any provisions that conflict with the new Act would be null and void. Therefore, we strongly recommend that companies existing prior to 1 May 2011 convert their Memorandum of Articles and Articles of Association into an MOI to ensure that its company constitution is up to date.

Rademeyer Attorneys is able to assist in all company secretarial work including incorporation of all types of companies under the new Act, conversion of a Memorandum of Articles and Articles of Association into an MOI and conversion of CCs into private profit companies. Please contact our offices for a quotation.

Kim Rademeyer – Partner
kim@rademeyer.co.za