GUIDE TO THE MEMORANDUM OF INCORPORATION

Legal Status of companies●●●●●●A company becomes a juristic person from the date and time that itsincorporation is registered, as stated in its Registration Certificate;A person who is a incorporator, shareholder or director is not liable forthe obligations of the company except to the extent that the Act or thecompany’s MOI expressly provide otherwise;Section 13(10) – as inserted by the Amendment Act: Upon compliance ofthe requirements for registration of a domesticated foreign company in SA,the Commissioner must issue to such company a registration certificate tothe effect that its registration has taken place and that it deemed that thecompany has been incorporated under the Act.3.3 GENERAL PROVISIONS RE THE MOI●●●●●●●●●●●●●●●●●●A brief MOI replaces a 2 part Memorandum and Articles of Association;It may be in the prescribed form or in a form unique to the company;It sets out the rights, duties and responsibilities of shareholders, directorsand others;It is the sole governing document of the company;Section 15(1)(a) and (b): It must be consistent with the Act and is voidto the extent it contravenes or is inconsistent with the Act – see page 36– Section 218, and Section 6 – any action taken which contravenes or isinconsistent with the Act may give rise to a civil action or an application tocourt to declare the action void – subject to Section 6(15) which deals withpublic regulation or listed company’s exchange requirements;Section 15(2)(a)(i): It may deal with any matter that the Act does notaddress;Section 15(2)(a)(ii): It may also alter the effect of any alterable provisionin the Act, orSection 15(2)(a)(iii): It may contain a provision which imposes on thecompany a higher standard, greater restriction, longer period of time orany similarly more onerous requirement than would otherwise apply to thecompany in terms of an unalterable provision of the Act;If a company elects to accept all the default provisions of the Act withoutlimitation, extension or variation per category of company – it may do so,and these default provisions will apply if not specifically altered;Section 15(2)(b), (c) and (d):●●●●●●●●A company’s MOI may also include:S15(2)(b) – any restrictive conditions applicable to the company, andany requirements for the amendment of such condition in addition to therequirements set out in section 16;S15(2)(c) – the amendment of any particular provision of the MOI, orSection 15(2)(d): The MOI must not include any provision that negates,restricts, limits, qualifies, extends, or otherwise alters the substance oreffect of an unalterable provision of the Act, except where such a provisionwould impose on the company a higher standard, greater restriction, longerperiod of time or any similarly more onerous requirement, than wouldotherwise apply to the company in terms of an unalterable provision ofthe Act.10