GUIDE TO THE MEMORANDUM OF INCORPORATION
GUIDE TO THE MEMORANDUM OF INCORPORATION GUIDE TO THE MEMORANDUM OF INCORPORATION
1.2 Powers of the Company(1) The MOI must state:................. either that the company is not subject to any provisions ofSection 15(2)(b) or (c) – Ring-fenced company (see page 11, relating toRing-Fenced companies and the doctrine of constructive notice) –OR................. if it is subject to S15(2)(b) or (c), then the restrictions orlimitations must be set out clearly in the Schedule attached to the MOI(Schedule 1 Part A);Any Ring-fencing provisions as contemplated in Section 15(2) of the Actshall be set out in Part A of Schedule 1 – for example, the company couldstate that the main object and business cannot be amended, making it aspecial purpose company. The suffix “RF” or Ring-Fenced would then subjointhe name of the company;(2) Whether the purposes and powers of the company:................. are not subject to any restrictions, limitations or qualificationsper S19(1)(b)(ii) –[which states that a company shall have all the legal powers and capacityof an individual except to the extent that a juristic person is incapable ofexercising any such power or having such capacity]OR................. If the company’s MOI restricts, limits or qualifies such powersof the company to act as an individual than such restriction or limitationmust be clearly set out in Schedule 1 Part A attached to the MOI.1.3 Memorandum of Incorporation and Company Rules(1) The MOI of the company................. may be altered or amended in the manner as set out in theAct i.e per Section 16, 17 (see page 13) or 152(6)(b) – [which relates toamendment during business rescue plan proceedings];OR................. may be so altered or amended in the manner set out inSection 16, 17 or 152(6)(b), subject to the provisions contemplated inSection 16(1)(c), as stated in Part B of Schedule 1 of the MOI;In other words, if the company decides to provide different requirementsin respect to proposals for amendments to the MOI [by way of specialresolution – in terms of Section 16(1)(c)] – see page 13, then theserequirements must be specifically set out in Part B of Schedule 1.(2) The MOI may state that the authority of the company’s Board of Directorsto make rules for the company as contemplated in Section 15(3) to (5) –see page 12 – is not limited or restricted in any matter in the MOIOR16
It may state that such authority is restricted or limited – in which case anyprovision relating thereto must be clearly stated in Part B of Schedule 1;(3) The MOI may state that the Board must publish such rules in terms ofSection 15(3) to (5), by delivering a copy thereof to each shareholder byordinary mail;ORmay set out additional or alternative requirements in Part B Schedule 1.(4) The MOI may state that the company must publish a notice of anyalteration of the MOI or rules (see page 13), made in terms of Section17(1) – by:................. delivering a copy of those rules to each shareholder byordinary mail;................. in accordance with the requirements set out in Part B ofSchedule 1;(applicable option to be ticked in the MOI);1.4 Application of optional provisions of Companies Act, 2008[This sub-article is not to be used in the case of a public company](1) The company –................. does not elect in terms of Section 34(2) to comply voluntarilywith the provisions of Chapter 3 of the Act [Enhanced Accountability andTransparency];OR................. does elect in terms of Section 34(2) to comply voluntarily withthe provisions of Chapter 3 of the Act, to the extent set out in Part C ofSchedule 1;In other words, if the company voluntarily decides to appoint a companysecretary or appoint an auditor and establish an audit committee, thenthese requirements must be specifically set out in Part C of Schedule 1.Notes on enhanced accountability:Section 34(2) states that a private company, personal liability companyor non-profit company is not required to comply with the extendedaccountability requirements set out in Chapter 3 … “except to the extentthat the MOI provides otherwise”. In other words, a company not requiredto have an audit or audit committee, or company secretary, can opt to doso voluntarily in its MOI.Section 34(1): Every public company and state-owned company isrequired to comply fully with the extended accountability requirements setout in Chapter 3.Section 84(1)(c): Chapter 3 also applies to every private company,personal liability company or non-profit company that is required by theAct or Regulations to have its annual financial statements audited everyyear – to the extent contemplated in Section 34(2) – in other words – sucha company is not also required to comply with the extended accountabilityrequirements set out in Chapter 3 – appointing a company secretary, auditcommittee etc, unless the MOI provides otherwise;17
- Page 3 and 4: CONTENTSNotes on the guide to draft
- Page 5 and 6: 1. OVERVIEW OF LEGISLATIONThe Act w
- Page 7 and 8: SHAREHOLDER AGREEMENTS[Schedule 5,
- Page 9 and 10: Regulation 31(3):Form CoR 31 (Notic
- Page 11 and 12: Any order of court in terms of the
- Page 13 and 14: ●●It may thus incorporate “re
- Page 15 and 16: ●●●●●●If a rule has bee
- Page 17: ●●Form CoR 15.1E - Long Standar
- Page 21 and 22: Applicable sections in the Act:Sect
- Page 23 and 24: ................. does not apply wi
- Page 25 and 26: For example, the MOI might set out
- Page 27 and 28: 3.7 Record date for exercise of sha
- Page 29 and 30: The Notice of meeting to shareholde
- Page 31 and 32: Note: the minimum % of 50% will how
- Page 33 and 34: NOTE: Section 66(4)(b) - A profit c
- Page 35 and 36: (5) Conduct of meetings:The authori
- Page 37 and 38: (ii) for wilful misconduct or breac
- Page 39 and 40: ●●A shareholder (and any other
- Page 41 and 42: pre-existing company means a jurist
- Page 43 and 44: Table BRELATED AND INTER-RELATED PE
- Page 45 and 46: Table DSOLVENCY AND LIQUIDITY TESTS
- Page 47 and 48: Table GLENIENCY RE GOVERNANCE FOR C
- Page 49 and 50: g) approve a decision of the board
- Page 51: CONTACT DETAILS:National:Gauteng (C
1.2 Powers of the Company(1) The MOI must state:................. either that the company is not subject to any provisions ofSection 15(2)(b) or (c) – Ring-fenced company (see page 11, relating toRing-Fenced companies and the doctrine of constructive notice) –OR................. if it is subject to S15(2)(b) or (c), then the restrictions orlimitations must be set out clearly in the Schedule attached to the MOI(Schedule 1 Part A);Any Ring-fencing provisions as contemplated in Section 15(2) of the Actshall be set out in Part A of Schedule 1 – for example, the company couldstate that the main object and business cannot be amended, making it aspecial purpose company. The suffix “RF” or Ring-Fenced would then subjointhe name of the company;(2) Whether the purposes and powers of the company:................. are not subject to any restrictions, limitations or qualificationsper S19(1)(b)(ii) –[which states that a company shall have all the legal powers and capacityof an individual except to the extent that a juristic person is incapable ofexercising any such power or having such capacity]OR................. If the company’s MOI restricts, limits or qualifies such powersof the company to act as an individual than such restriction or limitationmust be clearly set out in Schedule 1 Part A attached to the MOI.1.3 Memorandum of Incorporation and Company Rules(1) The MOI of the company................. may be altered or amended in the manner as set out in theAct i.e per Section 16, 17 (see page 13) or 152(6)(b) – [which relates toamendment during business rescue plan proceedings];OR................. may be so altered or amended in the manner set out inSection 16, 17 or 152(6)(b), subject to the provisions contemplated inSection 16(1)(c), as stated in Part B of Schedule 1 of the MOI;In other words, if the company decides to provide different requirementsin respect to proposals for amendments to the MOI [by way of specialresolution – in terms of Section 16(1)(c)] – see page 13, then theserequirements must be specifically set out in Part B of Schedule 1.(2) The MOI may state that the authority of the company’s Board of Directorsto make rules for the company as contemplated in Section 15(3) to (5) –see page 12 – is not limited or restricted in any matter in the MOIOR16
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