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LML4806
Company Law
Abbreviations used:
Co company
MOI Memorandum of Incorporation
Sh shareholders
Agm - agreement
Unit 1: Shareholders and company meetings
1 Introduction
Company has no physical existence, acts thru its members,
directors and employees.
Person must be duly authorized to act obo the company
Day to day running of Co is respons of its executive
directors
Shareholders dont have duties towards the Co, but may hav oblig
towards each other ito
shareholders agm
Def of shareholder = person who is entitled to exercise any
voting rights in relation to a
company, irresp of the form, title or nature of the securities
to which the voting rights are
attached (S57(1))
General comments regarding meetings:
i. Must be properly convened
ii. Prescribed notice give by persons with relevant
authority
iii. Notice must be given to all persons who are entitled to
receive a notice
iv. Must be convened for a time, date and place thats accessible
to members of the Co
v. May commence only if quorum is present
vi. Board of co may set record date for purposes of determining
which shareholders are
entitled to receive notice of a meeting, partic in and vote,
decide any matter by written
consent/e-comm, exercise pre-emptive rights, receive a
distribution
vii. Record date may not be earlier that date on which the
record date is determined. Must
be published to shareholders in manner that satisfies any
prescribed req.
Section 66(1) of the Companies Act of 2008 provides that 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 the powers and perform any of the functions of the company,
except to the extent that this
Act or the companys Memorandum of Incorporation provides
otherwise. The directors
therefore have a duty to manage the company but shareholders
retain control over the
directors by their power to appoint and remove directors. Many
important decisions taken by
the directors must furthermore be approved by the
shareholders.
2 Notice of meetings
This is the first step in convening a meeting (Section 62 of the
Companies Act):
1 Must be in writing
2 Must include date, time and place for meeting
3 Where record date has been set for meeting, notice must
include the record date
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4 Public company and non-profit company with voting members:
a. Notice must be given 15 business days prior to meeting
b. Ten days for other companies
c. May be longer if contained in Memorandum of Incorporation
5 Notice should explain general purpose of meeting and any other
specific purposes
6 Copy of any proposed resolutions received by the company which
is to be considered at the
meeting must be added to notice
7 Should indicate the percentage of voting rights required for
resolution to be adopted
8 Notice convening Annual General Meeting must contain a summary
of the financial statements
that will be tabled at the meeting. Notice must also explain
procedure that shareholder can follow
to get complete copy of annual finance statements for preceding
financial year
9 Must have a prominent statement that a shareholder is entitled
to appoint a proxy to attend,
participate in and vote at meetings in place of shareholder
10 Should indicate that meeting participant will be required to
provide satisfactory proof of identity
at the meeting
Failure of notif / defect in notif:
o Meeting may proceed if persons who may vote iro each item on
the agenda are present
at the meeting +
o Acknowledge actual receipt of notice and agree to waive the
notice or if defect, ratify
the defect
o If defect only affects one item, that item may be taken off
the agenda, notice remains
valid for remaining items on the agenda
o Immaterial defect/accid/inadvert failure in delivery does not
invalid any action taken
at the meeting
o A shareholder present at meeting deems to have received notice
of such meeting
3. Representation by Proxy
Proxy = person appointed to represent a shareholder at a
meeting
Common law did not have above right. But written into Comp
Act
Provisions of Memo of Inc may allow shareholder to appoint 2 or
more proxies
Once appointed, proxy will be allowed to attend, partic in,
speak and vote at shareholders meeting
Ingre v Maxwell:
o There must be at least 2 persons present to constit a meeting.
It is not a meeting
where one is in attendance and holds proxies of all other
persons who were entitled to
attend the meeting
Conditions of appointing proxy:
o Must be in writing and signed by the shareholder
o Valid for one year
o Proxy may be appointed for a spec period of time
o Appointm may be for 2 or more persons concurrently exercising
voting rights for
different shares
o Proxy may delegate authority to act obo the shareholder to
another person
o Copy of proxy appt form must be delivered to the comp before
the shareholders
meeting
o A shareholder is not compelled to make an irrevoc proxy
appt
o A shareholder may alter the proxy appt by cancelling it in
writing, appointing another
proxy and delivering a copy of the revocation to the proxy and
comp.
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Shareholder can indicate on the proxy form whether the notice of
meetings has to be delivered to the
shareholder or the proxy. If must be deliv to proxy, company can
charge shareholder a reasonable fee
Proxy is entitled to vote as he thinks fit unless shareholder
indic on proxy appt form whether the
proxy should vote in favour of or against a partic
resolution.
Comp can give a list of names of proxies to appoint. Shareholder
not obliged to choose from this list
Appt form should have sufficient space to provide name of proxy
and indicat vote in favour of or
against resol
Davey and other v Inyaminga Petroleum:
o Prescribed proxy form required the proxy-giver to set out the
number of shares iro
which he was authorising the proxy to vote
o This was not done
o In this case it was essential to provide this info = material
omission proxy was thus
incomplete and invalid
4. Demand to convene a shareholders meeting
Board (or person authorised in Memo of Inc) may call a
shareholders meeting at any time
Meeting may be convened if req by Memo of Inc (for eg to elect a
director), or demanded by
shareholders with at least 10% voting rights
Requirements for demand of meeting:
o Demand must specif purpose for which the meeting is
proposed
o Must be signed by holders of at least 10% of the voting
rights
o Memo of Inc may specif a lower percentage than 10%
o Com or shareholder may apply to court for an order setting
aside a demand for a meeting on
grounds that it is frivolous, vexatious, or calls a meeting for
no other purpose than to
reconsider a matter that has already been decided by
shareholders
o Shareholder who submitted the demand may withdraw it before
start of the meeting
5. Shareholders acting other than at a meeting
A resolution voted on at meeting can instead be submit for
consideration to the sh and voted on in
writing by sh entitled to exercise voting rights. Will have same
effect as if it was adopted at a meeting
Election of a director can be done in the same way
In 10 bus days after adopting resolution, Co must deliver a
statement describing results of the vote,
consent process, or election to every sh who was entitled to
vote
Gohlke and Schneider v Westies Minerale:
o Members may validly appoint a director to the board w/o any
formal meeting if there is
evidence of unanimous consent
In re Duomatic Ltd
o Unan approval of directors remuneration by the two directors
holding all the voting shares in
a company could be regarded as a resolution of a gen meeting
approving the payment
Change:
o Resolution can be adopted in writing. Unan assent no longer
necessary
o Business of a company which must be conducted at AGM may not
be conducted in this way.
6. Annual General Meeting
Public Co: must occur not more than 18 months after the Co date
of Incorp. Subsequent agms: not
more than 15 months thereafter
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Companies tribunal may grant extension if good cause is
shown
Following matters must be discussed:
o Presentation of Directors Report,
o audited financial statements for immediate preceding financial
year
o and Audit Committee report;
o Election of directors;
o Appoint of Auditor for the ensuing financial year and
appointment of the Audit Committee;
and
o Any matters raised by shareholders, with or w/o advance notice
by the Co
7. Convening a meeting in special circumstances
S61(11):
o Co cant convene a meeting because it has no directors, or they
are incapicated
o Any other person authorised by Memo of Inc may then convene
the meeting
o If not other person is authorised, any sh may request the Comp
Tribunal to issue and admin
order for a sh meeting to be convened
S61(12):
o If a comp fails to convene for any reason, shareholder may
apply to a court for an order req the
Com to convene a meeting on a date, and subj to any terms court
considers appropr.
o Co must compensate a shareholder who applies to Com Tribunal
for the costs of those
proceedings
8. Quorum
25% of all the voting rights iro one matter must be present.
Meeting cant begin without sufficient persons
Memo of Inc may specify a lower or higher percentage in place of
25%
If Co has more than 2 sh, meeting may not begin, unless at least
3 sh are present, provided they have
at least 25% voting rights.
9. Conduct of meetings
Voting done by show of hands or a poll
Each person only has 1 vote, doesnt matter how many shares
Poll: any member entitled to exercise all his voting right
attached to this shares
Meeting may be conducted electronically or one or more can
participate electronically
Where person abstains in vote, deemed to have voted against
resolution
Only votes of sh who actually exercise their voting rights will
be taken into consideration
10. Majority RuleMajority RuleMajority RuleMajority Rule
When a person becomes sh, he agrees to be bound by the decisions
of the majority. (common law rule)
11. Exercise of Voting rights
Sh of profit Co with only 1 sh may exercise all voting rights.
The rules of setting dates, proxies, etc
not apply to Profit co with only 1 member.
Profit Co has only 1 Director, director may exercise any power
at any time, w/o notice
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Where every sh of particular Co is also director of the Co, any
matter that must be referred by board
to sh may be decided by sh at any time w/o notice
Every director must be personally present when matter referred
in capa
present
Board that holds securities of a 2nd
2nd Co
Pender v Lushington:
o Sh, unlike directors, dont exercise their voting rights for
the benefit of the Co and
entirely in their own interest.
o A sh has a right to have his vote recorded, even if it made
not difference to the final result
12. Shareholder Resolutions
Ordinary resolutions 1 Decision taken at a sh meeting, with
support o
50% of the voting rights exercised
2 Memo of Inc may require higher percentage vote
3 Companies Act: there should be a margin of at least 10
percentage points between requirements for adoption of a special
resolution and those for an ordinary resolutions
Decisions can be taken without convening meetings
When board of directors propose a resolution to the
shareholders, board may decided whether it be
decided by meeting vote or written consent vote
Sh or director of opinion resolution is not clear, may apply to
court for restrain order to put resolution
to a vote until defect is remedied.
13. Decisions that require a special resolution
1. amendement of the Co Mem of Inc;
2. Approving the voluntary winding up of the Co and
3. Approval of a sale of assets, merger, an amalgamation or a
scheme of arrangement
4. Memo of Inc may req a special resolution to approve any other
matter
14. Postponement and adjournment of meetings
May be postponed for a week under the following conditions:
Within 1 hour after the appointed time for a meeting to begin, a
quorum is not present;
o Chairperson may extend the 1 hour limit for a reasonable
length of time on grounds of
exceptional circumstances
When a quorum is not present at the
in person/proxy will be deemed to constitute a quorum
o Meeting may go ahead if at least one shareholder at meeting
has voting rights.
If there is other business on the agenda of the meeting, c
to a later time in the meeting without motion or vote.
Where every sh of particular Co is also director of the Co, any
matter that must be referred by board
to sh may be decided by sh at any time w/o notice
Every director must be personally present when matter referred
in capacity as sh
nd Co may authorise any person to act as rep at any sh meeting
of that
Sh, unlike directors, dont exercise their voting rights for the
benefit of the Co and
entirely in their own interest.
A sh has a right to have his vote recorded, even if it made not
difference to the final result
Special resolutions Decision taken at a sh meeting, with support
of more than 75%
Memo of Inc may require higher percentage vote May provide for
lower percentage
Companies Act: there should be a margin of at least 10
percentage points between requirements for adoption of a
al resolution and those for an ordinary resolutions
ditto
Decisions can be taken without convening meetings
When board of directors propose a resolution to the
shareholders, board may decided whether it be
decided by meeting vote or written consent vote
Sh or director of opinion resolution is not clear, may apply to
court for restrain order to put resolution
to a vote until defect is remedied.
13. Decisions that require a special resolution
amendement of the Co Mem of Inc;
ding up of the Co and
Approval of a sale of assets, merger, an amalgamation or a
scheme of arrangement
Memo of Inc may req a special resolution to approve any other
matter
14. Postponement and adjournment of meetings
ollowing conditions:
Within 1 hour after the appointed time for a meeting to begin, a
quorum is not present;
Chairperson may extend the 1 hour limit for a reasonable length
of time on grounds of
exceptional circumstances
When a quorum is not present at the postponed or adjourned
meeting, the members of the Co present
in person/proxy will be deemed to constitute a quorum
Meeting may go ahead if at least one shareholder at meeting has
voting rights.
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.
Where every sh of particular Co is also director of the Co, any
matter that must be referred by board
city as sh. A quorum must be
Co may authorise any person to act as rep at any sh meeting of
that
Sh, unlike directors, dont exercise their voting rights for the
benefit of the Co and can act
A sh has a right to have his vote recorded, even if it made not
difference to the final result
May provide for lower percentage
When board of directors propose a resolution to the
shareholders, board may decided whether it be
Sh or director of opinion resolution is not clear, may apply to
court for restrain order to put resolution
Approval of a sale of assets, merger, an amalgamation or a
scheme of arrangement
Within 1 hour after the appointed time for a meeting to begin, a
quorum is not present;
Chairperson may extend the 1 hour limit for a reasonable length
of time on grounds of
postponed or adjourned meeting, the members of the Co
present
Meeting may go ahead if at least one shareholder at meeting has
voting rights.
onsideration of that matter may be postponed
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Unit 2: Directors, Board Committees and the Co Secretary
1. Intro
Co cant act on its own behalf, its conducted by reps.
2. Meaning of the word director and different types of
directors
Member of the board of a Co: incl any person occupying the
position of a director or alternate
dir.
A person becomes a director only when:
i. He has given written consent
ii. Appointed, electing, holding office wrt S66 of Act
King Code = guidelines which indic principles that a Co should
adhere to for purposes of good
governance
King code: 3 types of directors
i. Exec director
1. Have a service contract, work full time for Co
ii. Non-exec
1. Attend and vote at board meetings
2. Do not work full time for the Co and have no service
contract
3. According to King, 4 NB functions:
a. Bring special expertise and knowledge to bear on the
strategy,
enterprise, innovative ideas and bus planning of the Co
b. They can monitor and review performance of non-exec
management
more objectively than exec dir
c. They can play a role in resolving conflict of interest
situations
d. They can act as a check and balance against the exec
directors
iii. Independent (de facto directors)
1. 2 categ:
a. Act as directors w/o having been appointed
b. People appointed to office of director, although
qualifications dont
comply with the req
c. Re Hydrodam ltd
i. To establish de facto director, necessary to plead and
prove
that he undertook functions in relation to the Co which
would
probably only be done by the director
Companies Act: 5 types
i. Ex officio
ii. Memo of Incorp appointed
iii. Alternate
iv. Elected
v. Temp (in order to fill vacancy)
3. Directors and Managers
Manager = employee; director does not have to be employee
Managing Director
i. Moresby White v Rangeland ltd
1. Director who is vested by board of directors with all/subst
part of its general
powers of the control of affairs of the Co
2. Direct and immed rep of the Board, fully recogn for legal
purposes
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3. His relation to the Co must come from the actual terms of agm
between the
Co and himself
Directors Managers Leadership Board provides intrinsic
leadership
and direction at the top of the organisation
Carry thru the strategy obo directors
Decision Making Determine future of Co Protect assets and
reputation Consider how decisions relate to stakeholders
Implement decisions and policies of the board
Duties and responsibilities Long term prosperity of the Co Apply
skill and care in exercising their duty May be personally liable in
civ and crim law if in breach of duty Owe duties to
stakeholders
Fewer legal respons, can act contrary to the interest of the
employer
Relationship with shareholders Accountable to the sh for Cos
performance and can be removed from office by them Act as
fiduciaries of the sh and act in their best interest, also take
into account best interest of Co.
Appointed and dismissed by directors, do not interact with
sh
Ethics and values Have key role in determination of the values
and ethical position in the Co
Must enact Co ethos, taking their direction from the board
Co administration Responsible for Co admin Related duties can be
delegated to managers, but ultimate respons is that of
directors
Stat provisions in general There are many Not held respons under
the act Disqualification Under the act or ito Mem of Inc Control
over manager rest with
board and exercised in accordance with managers employment
contract
4. Number of directors and consent
Priv/person liabil Co must have at least 1 director
Public/ non-profit must have at least 3
S66(11): where Co does not have min directors, does not negate
or limit the authority
of the board, or invalidate anything done by the board
Person appointed must also give written consent to act as
director of the Co
i. S v Vandenberg (directors must be properly appointed):
1. Certain persons were criminally charged under companies
act
2. Court made it clear that the offence could only be committed
by a director of
the Co
3. Of the 3 charged, only 1 was duly appointed director
4. The other 2: occupied positions of directors and controlled
the Co
5. Court: if act speaks of directors, does not include de facto
directors, becos the
act has its own definition of a director
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5. Directors: the act and a Co MOI
The 2008 Act Memo of Incorp Number of Directors
a priv Co/person liab have at least 1
public/non-profit: 3
where does not have min, any act done by board remains valid
can specify higher nr than req of Act
not possible for mem to lower req nr than prescribed in Act
cant invalidate the acts of board where does not have prescribed
min
Appointment Memo of Inc of a profit Co must provide that the sh
will be entitled to elect at least 50% of directors and 50% of
alternate directors
Memo of Inc can provide that any person will have the power to
appoint and remove directors, but there must still be min directors
for profit Co
Removal S71:
despite a Mem of Inc or rules; and
despite any agreement between the Co and a director; and
despite any agreement between any sh and a directr,
a director may be removed by an ordinary resolution adopted at a
sh meeting
Cant entrench the position of any director and cant override the
will of ordinary sh as expressed in ordinary resolution
Ex officio Memo of Inc may provide for a person to be an ex
officio director.
Ditto
Alternate Directors
2008 act does not insist one one Can provide for appointm or
election of one
Remuneration does not have automatic right to remuneration
Co may pay remun to a director, unless prohib in Mem of Inc
Remun must be approved by a special resolution within the
previous 2 years
Memo of inc can provide for payment of directors
Term of Office Elected to serve indef term or fixed term as set
out in MOI
Ditto
Ineligib and disqualify
(next paragraph) Can provide for additional grounds of ineligib
or disqualify of directors, but cant override the provisions of
Act
Qualific Memo of Inc can prescribe minim qualify to be met by
the directors.
6. Ineligible and disqualified persons
If person is inelig to be appointed, he is absolutely prohib
from being director. No exceptions
exist. The following persons are inelig:
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i. A juristic person
ii. Minor or person under similar legal disability (under 18
years)
iii. Any person who does not satisfy any req in a Co MOI
If person is disqualified: may still be appointed with
permission by court. The following
persons are disqualified:
i. A person prohib by a court of law
ii. A person who has been declared to be delinquent
iii. An unrehabilitated insolvent
iv. A person who is prohib ito any public regulation
v. Removed from an office of trust because of dishonesty
vi. Has been convicted and imprisoned without the option of a
fine for theft, fraud,
forgery, perjury..
vii. Disqual ito Co MOI
Disqualify apply to all types of directors
When a person is inelig/disq, he must not be appointed as
director or consent to being
appointed as one
Co must not knowingly permit an inelig/disq person to serve as a
director
Any such person must cease to be a director and vacate the
office immediately.
7. Director disqualifications: Exemptions
S69(11) give court discretion to avoid disqualify.
Exemptions by a court:
i. Court may exempt certain disq persons. The following persons
may apply:
1. An unrehab insolvent
2. A person who was removed due to dishonesty
a. Must prove has been rehab from wrongful ways. Must prove can
be
trusted with responsibl of director
b. Ex parte Schreuder:
i. Applic previously convicted of fraud and imprisoned for a
year. After came out, became dir of 7 companies without
permission of court
ii. Was then convicted of contravening insolvency act.
Imprisoned for 9 months
iii. He brought application to court to allow him to be
director
iv. Court took into consideration following factors:
1. Nature of offence
2. Circumstance under which it took place
3. Applicants behaviour since commission of the offence
4. Whether the applicant has committed any other
offences with element of dishonesty
5. To what extent the entities that the applic is involved
in trusts him
6. The applicants biz acumen and knowledge of
companies
7. The time period that has elapsed from date of
conviction and date of application to be permitted
c. Ex Parte Tayob:
i. Applicants were involved in bribery
ii. One year after conviction, brought application to be
permitted
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iii. Court: bribery and corruption hold serious threat to open
and
honest community
iv. Court: too little time lapsed between convict date and date
of
applic
3. Convicted of a crime
ii. Person must make an ex parte applic to the court for
permission
Exemptions for certain private companies
i. Despite being disqualify a person may act as director of a
private Co if:
1. All the shares are held by that disqualify person alone
or
2. All shares are held by the disqualify person and persons
related to such person
each one has consent in writing that he be directore
3. Ex parte Barron:
a. Applic was director of several priv Co. him and wife was
only
shareholders
b. He was tried and convicted of fraud
c. Court: factors which affect discretion of court:
i. Type of offence
ii. Whether or not it was a first conviction
iii. Type of punishment imposed
iv. Whether it was a public Co where applic wants to be a
director or if its a priv Co
v. Attitude of shareholders and whether all the shareholders
support the application
vi. Court: will be more lenient in a case where priv Co is
affected
that a public Co. reason: director of public Co deals with
funds
in which a vast number of people may have an interest.
8. Application to declare a person delinquent or under
probation
The following persons can apply to court for such an order
i. A Co
ii. Shareholder
iii. Director
iv. Co secretary or prescribed officer of a Co
v. Registered trade union that represents employees of the
Co
vi. Any other rep of the employees of the Co
vii. The Commission or
viii. The Takeover Regulation Panel
Declared delinq = disqual from being a director
Grounds for application Order sought Effect of order The person
acted as director while he was inelig or disqualify
delinquency declaration is unconditional and exists for the
lifetime of the person declared delinq.
Person acted as dir while under probation and in contravention
of order under co Act
Delinquency Same as above
Person grossly abused the position Delinq Conditions which court
consider just. Declaration exists for 7 years from date of order.
Act provide that court may order the person concerned:
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Undertake a designated programme of remedial education relevant
to the nature of the persons conduct as a director
Carries out a designated programme of community service or
Pays compensation to any person adversely affected by his
conduct as director
Took personal advantage of info or an opportunity contrary to
the Act
Delinq Same as above
Intentionally or by gross neglig inflicted h arm on the Co or a
subsid of the Co
Delinq Same as above
Acted in a manner that amounted to gross negligence, wilful
misconduct or breach of trust
Delinq Same as above
Person acted in manner contemplated in S 77(3)
Delinq Same as above
Was present at a meeting and failed to vote against a resolution
despite the inability of the Co to satisfy the solvency and liquid
test
Probation Subj to conditions imposed by the court for no more
than 5 years. Court may order person concerned:
Same as first three bullets above
Be supervised by a mentor in future partic as a director while
the order remains in force or
Be limited to serving as a director of a priv Co, or of Co of
which he is sole shareholder
Person acted in a manner materially inconsistent with the duties
of a director
Probation As above
Person acted in or supported the decision of the Co to act in an
oppressive or unfairly prejudicial manner
Probation As above
Where applic is the Commission or Takeover Regulation Panel: can
apply for any of the grounds above as well
as these below:
1. The person has repeatedly been personally subj to a
compliance notice or sim enforce mechanism ito
any legislation; or
2. Has at least been 2 personally convicted of an offence, or
subj to an admin fine ito any legisl; or
3. Was a director of one or more Co or managing member of one or
more CC or controlled a juristic
person, that were convicted of an offence within period of 5
yrs. Position must be proven at time of
contravention
Court will grant a delinq order onlyl if satisf that this
declaration is justified.
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Application to court:
A person declared delinq may apply to court as follows:
To suspend the order, substit order of probation, w or w/o
conditions, at any time more than
3 yrs after the order of delinq was made; or
To set aside the order at any time more than 2 yrs after it was
suspended (as above)
On considering, court may not grant order unless applic has
satisfied all the conditions that were
attached to the order
9. First directors of a Co
Every Incorp of a Co is deemed to be the director until suffic
directors have been appointed
10. Vacancies on the board
Vacancy arises in the following circumstances:
1. Period of fixed term contract expires as provided in MOI
2. Person resigns
3. Dies
4. Position of ex officio director becomes vacant if person
ceases to hold the office
5. Ceases to reside in SA at a time when there are no directors
of the Co resident in the country
6. Becomes incapac to extent unable to perform functions of a
director and is unlikely to regain
that capac within a reason time
7. Declared delinq
8. Placed on probation
9. Becomes ineligible or disqualify
10. Removed from office by resolution of sh or resolution of the
board or order of court
11. Filling of vacancies
Must be filled within 6 months after the vacancy arose
If no remaining directors, any sh with voting rights may convene
a meeting to elect directors
Co must file notice within 10 business days after person becomes
or ceases to be a director
12. Removal of directors
12.1 removal by sh
May be removed by an ordinary resolution adopted at a sh
meeting. This may happen no
matter the terms of the agm
Notice of the meeting must be given to the director prior to
considering the resol to remove.
He must be allowed reason opport to make a represen (n person or
thru rep) to the meeting,
before resol is put to vote
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12.2 removal by board of directors
Grounds:
If Co has more than 2 directors and its alleged by sh/direct
that a diretor of the Co has
become inelig or disqual;
Director has become incapac to the extent he is unable to
perform functions of dir and
unlikely to regain cap within reasonable time
Director is no longer resident in republic in circums where
there are no other
directors resid in Rep
Has neglected/been derelict in perform of functions
Where the Board took resolute to remove dir, dir may apply to
court to review determination
of the board. Must be brought in 20 bus days from date of
decision.
Above rules do not apply to company with less than 3 dir. If so,
dir/sh may apply to
Companies Tribunal to determine any matter above.
12.3 removal and breach of contract
Removal as a dir ito the Bill can constit breach of contract.
The dir will retain the right to
claim ito of comm. law for damag or other compensation for loss
of office as dir
13. Board Committees
Co Act: Board of dir may appoint any number of committees and
may delegate any authority to the
comm..
King Code: Board is the focal point of corp governance, it may
delegate author, there is an NB
distinction between delegation and abdication of powers. The
board is respons for carrying out its
duties properly and this cant be avoided by shielding behind a
comm..
Co Act: Dir remains liable for proper performance despite
delegation of duty to a comm.
A non-dir appointed to comm. will nt have any voting rights on
any matter decided by the comm..
Min of T&I may prescribe social and ethics comm. if desir in
public interest, having regard to:
Annual turnover
Size of the workforce
Nature and extent of its activities
a) Committees and the King Code
Should be established to assist dir by giving detailed attention
to important areas.
Public listed Co should have at least and audit and remun
comm.
Industry and co spec issues will dictate the req of other
comm.
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14. Board Meetings
Dir authorised by board may call a meeting of the board at any
time. Dir meeting be called in follow
circumst:
If req to do so by nr of % of dir specif in Co MOI;
If req to do so by at least 25% of the dir, where the board has
at least 12 members
Where
Where board has less than 12 members and meeting is req by 2
dir
Committees and their responsibilities (King Code)
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a) E-communication
The Bill makes it possible to conduct board meetings by
e-commun.
b) Notice
Form of notice and notice periods are determined by the board of
dir. Req: should comply with req in
Mem of Inc.
c) Quorum
Majority must be present before a vote may be called.
d) Voting
Every director has one vote. In the event of a tied vote, Chair
may cast deciding vote.
e) Minutes and Resolutions
Minutes must be kep. Must incl any declarations given by dir and
resolutions adopted by the board. Min
signed by Chair are evidence of proceedings of that meeting.
f) Directors acting other than at meeting
A dec that could be voted on, may instead be adopted by written
consent of a major of dir given in
person or electron. Has same effect as if it has been approved
by a vote.
15. Company Secretary
a) Appointment & Duties
Mandatory appointment o All public companies with share capital
excl share block company o Secretary =
Permanently resident in SA In opinion of directors requisite
knowledge & experience to carry out duties of
secretary of public company.
First appointment o Majority of subscribers to memorandum, or o
Directors appoint first secretary
Casual vacancy o Directors must fill < 90 days o Failure
company must notify Registrar within 7 days o Failure to appoint =
offence
Consent o Accept appointment as secretary lodge consent [CM27] o
Appointment has no legal force until prescribed form lodged.
[CM29]
Duties o Providing guidance to directors re duties,
responsibilities and powers o Making directors aware of all law,
legislation relevant to company + reporting any
compliance failures at director or shareholder meetings o
Ensuring that meetings are minuted o Certifying in AFS that annual
returns were submitted and that returns are true, correct
and up to date o Ensuring that copy of AFS is sent to every
person entitled thereto
Resignation o Company must notify Registrar within 21 days
Removal o Secretary may request AFS statement why removed o
Written notice before end of financial year during which
removed
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b) Relationship towards company
Chief administrative officer
Fiduciary duties
Employee of company
May also be a director, if permitted by articles
Secretary may not be auditor of public company
Private company may act as auditor provided o All shareholders
consented o None of the shares are held by public company o
Registered with ito PAAA o Relevant facts set out in auditors
report
i. In re Maidstone Buildings Provisions Ltd
Secretary while merely performing secretarial duties -not
concerned in the management of the company
May be concerned in other capacity
ii. Panorama Developments (Guilford) Ltd v Fidelis Furnishing
Fabrics Ltd
Contractual powers Secretary entered into fraudulent contracts
without companys knowledge Very humble role no authority to enter
into contracts or make representations obo company Times changed
officer with extensive duties and responsibilities Entitled to
enter into contracts wrt administrative side of business Thus
company bound to contracts entered into by secretary
16. Registration of company secretary and auditor S85 of
Companies Act:
1. Every company that makes an appointment contemplated in
section 84(4), irrespective of whether
the company does so as required by that section or voluntarily
as contemplated in section 34(2), must
a. maintain a record of its company secretaries and auditors,
including, in respect of each person appointed as company secretary
or auditor of the company i. the name, including any former name,
of each such person; and ii. the date of every such appointment;
and
b. if a firm or juristic person is appointed i. the name,
registration number and registered office address of that firm or
juristic
person; and ii. the name of any individual contemplated in
section 90(3), if that section is applicable;
and c. any changes in the particulars referred to in paragraphs
(a) and (b), as they occur, with
the date and nature of each such change.
2. To protect personal privacy, the Minister, by notice in the
Gazette, may exempt from the application of subsection (1)(a)
categories of names as formerly used by any person
a. before attaining majority, or by persons who have been
adopted, married, divorced or widowed; or
b. in other circumstances prescribed by the Minister.
3. 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 file a notice of the
appointment or termination, as the case may be, subject to
subsection (4).
4. The incorporators of a company may file a notice of the
appointment of the companys first company secretary, auditor or
audit committee as part of the companys Notice of
Incorporation.
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Unit 3: Duties of directorsUnit 3: Duties of directorsUnit 3:
Duties of directorsUnit 3: Duties of directors 1. Duties of
Directors
Dir need to know what their duties are.
Courts may still have regard for common law, incl past case law
when interpret provis of the Bill
Certain duties have thus been codified:
Complete codif: body of rigid rules. Cant accomm an environ
Partial codif: adopt gen princ of law but allows some room for
developm of common law
At common law dir are subj to fiduciary duty to act in good
faith and in the best interest of the Co
Fiduciary duties generally entail:
1. Avoiding a conflict of interest between the directors
personal interests and the interests of the
co
2. Not exceeding the limitations of his power
3. Maintaining an unfettered discretion
4. Exercising his or her powers for the purpose for which they
were conferred
a) Standards of Dir conduct
Common law directed the conduct previously. Dir was subj to
fiduc duties to act in good faith to
benefit of Co as a whole.
Co Bill introd new provisions
Summary of newly codified duties
1. Disclose to the Board any personal financial interest in
matters in which the Co has a material
interest
2. Not to use the position of director, or info obtained while
acting in the capac of director, to
gain an advantage for himself or another person, or knowingly
cause harm to the Co or
subsidiary
3. Disclose to the board any material info that comes to a
directors attention
4. Act in good faith and for a proper purpose
5. Act in the best interest of the Co
6. Act with a reasonable degree of care, skill and diligence
b) Dir must not abuse position or inform and must act in a
certain way when there is a
personal financial interest (the first 3 duties above)
Must not use his position to gain personal advantage or for
anyone else other than the Co itself.
S75 deals specif with a directors personal finance interest: if
in conflict with those of Co, director
must disclose the interest to sh or board.
2 situations regulated in S75:
1. If director is only director but not only sh, must disclose
any personal inter in
an agm in which Co has material inter to the sh. Must obtain
prior approval
by an ordinary resolution before he enters into this agm.
2. Other cases: disclosure must be made to the board of
directors of any personal
finan inter in a matter to be considered at the board meeting.
This director
may not be present at this meeting or take part in the
discussion.
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May disclose the interest in advance by writ notice (nature,
extent of personal interest) to board or
sh. Valid until changed or withdrawn.
Director is prohib from executing any doc obo Co in relation to
the matter unless he has been
specif requested to do so by the Board.
If dir acquires info in agreement that was approved, must
promptly disclose to the board
Any interested person may apply to court for a court order
validating a trans or agm that was
approved by board or sh despite the failure of director to
satisfy disclose req.
S75(6): director or person related to director acquires fin
inter in an agm in which Co has material
inter, after Co has approved the agm. The director is obliged to
disclose:
1. Nature and extent of his finan inter
2. Material circumstances relating to the director or related
persons acquisition of that
interest
Circumstances under which provision does not apply:
1. Not applic to director wrt a decision that may have an effect
on:
a. All the directors of the Co in their capac as directors;
b. A class of persons, despite the fact that the director is one
of the members of this
class
2. Not applic to dir wrt a proposal to remove the director from
office
3. No applic to Co or its director, if one person holds all the
beneficial inter of all the issued
certif. of the Co and is the only director.
Where a person is the only director but does not hold all the
benef inter such a person may not:
1. Approve or enter into any agm in which he/related person has
a personal fin inter; or
2. As a director, determine any other matter in which the
person/related person has a
personal fin interest unless ordinary resolution approv the agm
or determination, after
director disclosed info the interest.
S76(2)(b): Dir must communic to board any info that comes to his
attention unless he reason
believes that info is:
1. Immater to Co
2. Gen avail to public
3. Known to other directors
Not compelled to disclose info where legal or ethic oblig
prevents him from doing so
Regal Hastings Ltd v Gulliver:
o Conflict of interest o Regal was unable to buy all the shares
in X company o Director and friends subscribed for 60% of Xs shares
o New shareholders took over Regal and X director and friends made
profit o Regal instituted action against director action succeeded
o Test for liability:
Profit acquired by director on grounds of occupation of office
Profit also acquired in the execution of the directors office Even
though honest & well intentioned
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o If Gulliver obtained approval from general meeting, could have
retained profit.
Robinson v Randfontein Estates Gold Mining Co Ltd
o Conflict of interest o Chairman purchased farm in his own name
after his company could not finalise deal o Subsequently sold farm
to company for profit o Apellate division held:
Robinson not entitled to make profit from his office Ordered to
repay profit to company Director is not allowed to make a secret
profit at the companys expense or place
himself in a position where his personal interest conflict with
his duty
Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty)
Ltd
Conflict of interest
Managing director sabotaged his companys chances to obtain a
contract
Started own company during notice period
Managing director actively employed can not hold directorship at
competing company
Mere incorporation of competing firm during notice period not
necessarily conflict of interest
Took over that contract unlawful competition? Absence of
restraint of trade agreement o Diverted certain raw material
contracts o Induced employees of Atlas to join Pikkewyn
Sibex Construction (SA) (Pty) Ltd v Injectaseal CC
Conflict of interest
Directors used confidential information to prepare tenders in
competition with their former company (Sibex)
Breached fiduciary duties towards Sibex o Fiduciary duty remains
even after resignation from office o If occurred as a result of
breach which existed prior to termination of office.
Fiduciary duty stem from position of power iro company
Provisional interdict was granted
c) Acting in good faith and with a certain degree of care, skill
and diligence
Must exerc powers and perform functions of dir in good faith and
in best interest of Co
New Act partially codified this duty of skill and care
Objective test is applied to determine what the reason director
would do in same situation. This
contains subj elements, gen knowl, skill and experi.
Must take reason diligent steps to become informed about a
particular matter. Co Bill introduces
the business judgement rule into SA Co Law_S76(4):
Dir will not be held liable for breach of fid duties and
satisfied his oblig if he can prove that he
took reason dilig steps to become informed about the matter
Will also not incur liab if he disclosed the conflict of
interest req by the Bill
Director is entitled to rely on:
1. One or more employees of the Co whom the Dir reason believes
to be reliable and
competent in the functions performed;
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2. The info, opin, reports or statements provid by legal
counsel, accountants or other pros
retained by the Co;
3. The board/comm. As to matters involve skills/exper that the
dir reason believes are
matters within the partic persons prof or expert competence
Fisher Developm Corp v Jorgensen:
extent of dir duty of skill largely depends on the nature of Co
business, the law does not req of
a dir to have special bus acumen and dir assume that officials
will perform their duties
honestly.
Degree depends on o Nature of companys business o Particular
obligations assigned to or assumed by director
Difference between full time/executive director &
non-executive
Participate in day-to-day management v intermittent
involvement
Care reasonably expected of a person with his knowledge and
experience
Not liable for mere errors of judgment
May trust officials to perform duties honestly o Not trust
blindly o Due consideration & exercise own judgment
d) Liability of dir and prescribed officers
The Co may recover loss, damages or costs sustained by the Co
from the dir under following
circum:
Ito princ of comm. Law or prov of the law of delict relating to
breach of fid dut;
Where a dir acted in name of Co or signed anything obo the Co
while he knew he lacked
author to do so;
Conducted Co business in contravention of prov in the Bill to
pre-incorp contracts;
Party to an act/omiss by the Co despite knowledge that it is to
defraud a credit, employee
or sh of the Co or any other fraudulent purp;
Signed, consented to, author the publication of finance
statements that were false or
misleading in a material respect;
Signed, consented to, author public of prospectus or writ statem
that contained an untrue
statem or to the effect that a person had consented to be dir of
the Co, despite knowing
statem was false, misleading;
Was present at meeting or decision-making where there was
non-compliance with
formalit as prescribed in Bill;
Failed to vote against issue of unauthor shares, despite knowled
it was unauth;
Partic in issue of author securities, despite knowl that issuing
did not comply with prov of
Bill;
Partic in granting of options to any person despite knowing any
shares for which options
could be exerc had not been author;
Partic in decis to grant finan assistance to any person for
acquis of secur of the co, despite
know its inconsist with S44 of Co MOI.
Dir is provided with a loan despite knowl that prov of finan
assist was inconsist with S45
of Bill or MOI
Partic in resolution approving distrib despite distrib was
contrary to provisions of S46
Acquis by the Co of any of its shares despite knowing its
contrary to s46 or 48
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Allotment of shares contrary to prov of Ch 4 of the Bill
Dir will be jointly and severally liab with any other persons.
Proceedings to cover costs may not
be commence more than 3 years after act that gave rise to
liab.
Bus judg rule: dir should not be held liab for decis that lead
to undesir results, where the decis
were made in good faith, with care and on an informed basis.
Support for the rule: apart from
exempt from liab, serves as motivation for capable persons to
undertake the position of
directorship
Against rule:
degree of duty of care and skill is below a level std;
dir cant be held liab for mere errors in judgem just becos the
court disagrees with a decis a
judge made;
the exact content of rule is difficult to define
e) Indemnification and dir insurance
Co is entitled to take out indem insur to protect a dir against
any liab for which the Co is
permitted to indem a dir. Can also insure itself with indem
Co may not indem in follow circum:
Director acted in name of Co while knowing he lacked author to
do so;
Acquiesced in carrying of Co busin in insolv circum while
knowing that it was being
conducted;
Was a party to an act by the Co despite knowing the act was to
defraud a cred, employee
or sh
Co loss or liab arose fromwillful misconduct or breach of trust
on part of dir; or
Liab to a fine for an offence contrav of any national legisl
Co may claim restit from a dir for any money paid by the Co in
any manner inconsist with the
above restrictions.
Indemnif applies to current and former directors
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Unit 4: Capacity and representation of a CompanyUnit 4: Capacity
and representation of a CompanyUnit 4: Capacity and representation
of a CompanyUnit 4: Capacity and representation of a Company
1. Legal capacity of a Co and the Ultra Vires Doctrine
73 Act: Determined by obj clause of the MOI
Co = legal person
Contract that fall out of this scope = null and void
Ultra vires some act/transact with Co is beyond legit powers of
the Co as defined by its obj clause
Objection to ultra vires contract is that it could not make
it.
Purpose: to protect sh and creditors
Legal conseq: between Co and other party of contract = null and
void. Between co, dir = dir liable to
Co for breach of fiduc diuty
Crit:
Co are able to circumvent the doctrine by specif in detail and
as widely as possible in their obj clause
all the bus activ which the Co might conceivably wish to pursue
with a list of ancillary powers.
Att-Gen v Mersey Railway: court explained that whther a partic
contract falls within capac and
powers of the Co is a question of fact.
S36 of 73Act partially abolished this doctrine by repeal the
comm. Law rule that the doctrine was null
and void. Provided: no ultra vires contract shall be void, in
any legal proceed neither the Co or party
to contract could assert on lack of capacity.
But dir continues to be liab for breach of fid duty. Members of
the Co are still entitled to restrain dir
from entering into ultra vires contracts.
2. Representation
Person acting under the co authority. Authority can be given
expressly or by implication. Whether
authority has been conferred is a question of fact.
A Co may be bound to a contract on basis of estoppel where
person concluding a contracted lacked the
necessary authority, but other party had been misled believing
that person had authority.
S19(4)
Subj to subs 5, person must not be regarded as having received
notice of contents of any do relating to
Co merely because:
(a) Has been filed or
(b) Is accessible for insp at an office of the Co
S19(5)
A person must be regarded as having received notice and
knowledge of:
(a) Any prov of Co MOI contemplated in S15(2)(b) if Co notice of
Incor has drawn atten to
the provi; or
(b) Effect of sub 3 on a personal liab co
-
S20(2)
Co MOI limits powers of the Co, or limit author of dir, sh may
(by spec resolution) ratify any action by
Co/dir that is inconsist with any such limit subj to subs 3
S20(3)
An action above may not be ratif if in contrav of this Act
S20(5)
One or more sh may take proceed to restrain Co from doing
anything inconsist with any limit in sub 2
but any such proceed are w/o prejuc to any rights to damages of
a 3rd party who:
(a) Obtained those rights in good faith; and
(b) Didnt have actual knowl of the limit
S20(6)
Each sh has claim for damages against any person who
fraudulently or due to gross neglig causes Co
to do anything inconsist with:
(a) This Act or
(b) A limit ito sub 2
S20(7)
A person dealing with Co in good faith is entitled to presume
that the Co has complied with all formal
req ito Act, MOI
S20(8)
Sub 7 must be construed concurrent with any relevant comm. Law
princ relating to the presumed
valid of actions of Co
3. The doctrine of constructive notice
Doctrine partially abolished by Co Bill of 2008:
S19(4): Third parties will no longer be deemed to have notice of
contents of publ docs of a Co merely
because they have been filed with Comm or are accessible for
inspection
Protects the Co from unauthor acts of its directors
S19(5): 2 exceptions to the above:
1. A person is deemed to have knowl of any provision of Co MOI
ito S15(2)(b)
2. Personal liab co: a person is regarded as having notice and
knowl of effect of s19(3) on a
personal liab co
4. The Turquand rule
Royal British Bank v Turquand:
According to common law Turquand rule: an outsider contracting
with the Co in good faith is entitled
to assume that all internal req and procedures have been
complied with. The co will be bound by the
contract even if internal req and proced have not been complied
with.
Exceptions:
1. If outsider was aware of the fact that req have not been
complied with
2. Circumst under which contract was concluded were
suspicious
-
Special rule of Co law intended to mitigate the severe effects
of the doctrine of constructive not by
entitl a bona fide 3rd party to assume that the Co has complied
with its internal formalities as spec in
its Cons
Protects innocent 3rd parties by ensuring that failure by the Co
to comply with its own formalities
does not prejud the 3rd party.
Co Bill abolishes constr notice but keeps Turq rule. Also excl
3rd party from invoking this rule where
he ought reasonab have known of non-compl by the Co
The comm. Law on turq rule has been extended to trusts, techs
and trade unions
S20(7) of Act
A person dealing with a Co in good faith, other than internal
person, is entitled to presume the Co has
complied with all formal proced
Wolpert v Uitzigt Properties (Pty) Ltd:
The articles of Co provided that board could authorise a person
to sign promissory notes on its behalf.
One of the directors signed promissory notes without
authorisation. Is outsider entitled to assume
director was authorised?
Court: outsider with express notice of the articles could assume
that someone was authorised but not
that the specif person was author to do so.
Req for turquand rule to come into operation:
1. The person who acted must have possessed actual authority,
subj to an internal formality
Tuckers Land and Devlopm Corp v Perpellief: 3rd parties may not
automatically assume that a branch
mng or ordinary director has authority to act obo the Co.
5. The doctrine of estoppel
Applies only when the agent did not have actual author to bind
the Co. Misrepresent must have been
made by the Co as princ. Co will be estopped from denying liab
if the 3rd party can prove:
Co intention/neglig misrep the agent concern as hav necess
author to repress the Co
Misrepres was made by the Co
3rd party was induced to deal with the agent because of the
misrep
3rd party was prejudiced by the misrep
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Unit 5: Corporate finance: shares and debentures 1.
Introduction
Co obtains the funds it needs by 2 possible means: equity
financing and debt financing.
Equity financing: issuing of shares in return for money = share
capit of Co
Debt financing: loans = bank loans or debt securities. Tradition
debt secur = debenture
Providers of equity finance = sh. They receive a return on their
investments in the form of dividends
If Co is wound up and all the creditors have been paid, the sh
are entitled to balance of assets of Co.
Providers of loan capital creditors return on investment is
interest on the loan
If a Co is doing well it might be in interest of sh to increase
debt financing and decrease equity
financing. The advantage is apparent from effect of gearing or
leveraging
Gearing:
Co has 100 sh and share capit of R100 000. Debentures of R100
000 bearing 10% inter per annum.
Co has raised capit of R200 000. Its debt-equity ratio is
1:1.
Co will have to show annual profit of at least R10 000 to pay
the interest due. If it shows less profit, sh
will not receive any dividends
All profit above R100K will be avail for divid.
If Co is performing well, it can afford to have fewer sh who
receive higher roi
If Co shows profit of R100. The first R10K must go twards the
service of the debt instrument. R90K is
then avail for the distribute of divid.
If the Co did not make use of gearing, but chose to raise all
capit in form of equity. It raised R200K
from the issuance of 200 shares to 200 sh. The full R100K is
avail for divid distrib, but since it has to
be divid by 200 sh, they may only receive R500 divid
Ito new Co Act: no longer possible to issue par value shares.
Minister may make further regulations to
assist in the conversion of these shares into no par value
shares.
2. Def of a share
Share = form of property. Its a measure of sh interest in a
Co.
Standard Bank v Ocean Commodities: Share = bundle of personal
rights, entitle holder to share in
profits
3. Classes of shares
Shares have 4 absolute rights:
Right to vote
Right to info
Right to share in profits once they are declared as divid
Right to share in net surplus capit of a Co on its
winding-up
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a. Preference shares
Holders enjoy pref over any other class iro payment of divid and
sometimes return of capit on
winding up.
Rights depend on the Mem of articles of assoc
A co cant have pref shares, unless it also has ordinary shares
or another class of shares.
A divid may be paid out of the co capital.
Prefer sh only get divid after they have been declared
Right to vote of pref shareholders:
Ito old Act pref sh always had the right to vote on resolutions
which directly affected the
rights/interests attached to their shares. Winding up of Co and
reduction of share capital were
expressly listed as these type of circumstances.
New Act does not mention proposed winding up of a Co as specif
resolution on which pref sh
have a right to vote. The following court case provides guidance
in this regard:
Utopia Vakansie-Oorde v Du Plessis
a. Court found that the concept of interests was much wider than
the concept of rights
b. Court held that affect implies that rights/interests of pref
sh must potentially be prejud
by the proposed resolution
c. It is submitted that the proposed winding up of a Co will
directly affect the interests of
pref sh and this would still be a resolution on which pref sh
will have the right to vote
under the new Act.
Cumulative pref shares
o Happens that co resolves not to declare a dividend on its pref
shares. If pref
shares are non-cumulative, the pref dividend is lost forever
o If cumul: the arrear dividend will be carried forward to the
next year
o Arrear and current div must be paid before div paid to
ordinary sh.
o Since div must be declared before claimed, cum pref sh enjoy
no pref on
winding up of Co to arrear divid that has not been declared.
o Rule: Pref shares are presumed to be cumul unless expressly
provided
otherwise in Co Constit
Participating pref shares
o Pref sh are entitled only to their fixed prefere div but not
entitled to share in
surplus profits after payment of divi (non-partici)
o Gen rule: pref shares are presumed to be non-participating
o If provided in con: pref sh may be given right to share on pro
rata basis with
ordinary sh in distrib of surplus profits
Prefer rights to refund of capit on winding-up
o Gen rule: pref shares do not enjoy a right to repayment of
their capital in prior
to ordinary shareholders on the winding up of the Co
o Where pref sh are given right to their capital on winding up,
right =
exhaustive. They will then not share in any surplus assets on
winding up
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Convertible pref shares
o Conditions of issue of pref shares may give sh a right to
convert their shares
after a given date into another class of shares.
b. Ordinary shares
Residual class. Constitutes the equity share capital of the
Co
If Co has pref sh, ordinary sh receive their div that have been
declared after pref divi
has been paid
Div paid to ordinary sh fluctuates in accordance with the
profits of the Co
Enjoy right to vote at gen meetings of sh
New Act permits Co MOI to confer any class of shares
Disadv of voteless shares: enable sh holding only a small
proportion of shares to
exercise effective control over the co
If co has only 1 class of shares, all of them have right to
vote. If more classes, at least
one class must have right to vote
Have statut right to vote if there is a resolution proposed to
amend pref, rights and
limitations of the shares
c. Deferred
Founders shares
Div only paid out if amount exceeds a certain threshold and
after ordinary sh have
been paid.
They are last in line to receive div
d. Capitalisation
Co has converted its distributable profits into share capital
instead of declaring div out
of it
The Co decides to reward current sh by allocating additional
shares to them, rather
than paying out a cash div.
Terms of offer could give sh the option to receive a
predetermined cash amount
instead of shares. The payout is then considered a distribution
ito Act and must
conform to req of S46:
(1) A company must not make any proposed distribution unless (a)
the distribution
(i) is pursuant to an existing legal obligation of the company,
or a court order; or (ii) the board of the company, by resolution,
has authorised the distribution;
(b) it reasonably appears that the company will satisfy the
solvency and liquidity test immediately after completing the
proposed distribution; and (c) 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
4. Issue of shares
Co directors can only allot shares with prior approval of
members in gen meeting
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New Act: power to issue shares exercised by board of directors,
if MOI explicitly authorises board to
do so
Issuing shares is seen as a management decision for directors to
make
Issue of shares to be approved by a special resolution of Co
sh:
1. Where shares are issued to directors incl future directors or
certain prescribed
officers of the Co
2. Shares are issued to a person related/interrelated to the Co
or a director or
prescribed officer
3. Shares are issued to a nominee of a director/prescribed
officer
If voting power of shares to be issued exceed 30% of the voting
power of all shares held by sh, a
special resolution of members of Co is required.
a. Right of pre-emption (only apply if proposes issue of new
shares is for cash)
gen rule: sh in private companies will enjoy pre-emptive rights
to new shares to be issued.
When Co issues new shares, these shares must be offered to
existing sh first pro rata their
current shareholdings.
Pre-emptive rights protect the existing sh against dilution of
ownership.
Eg: Southon Pty Ltd has 2 sh each holding 10 shares. At meetings
they have equal
voting power. Southon Pty Ltd wants to issue 20 more shares. If
a third person
acquires all 20 shares, he will have half the voting rights and
the remaining two will
each only have 25% of the voting rights. If they exercise their
right of pre-emption,
each will be entitled to half of the 20 new shares and retain
the same voting power
b. Adequate consideration (s40 of Co Act)
S40: Board may only issue shares for adequate consideration.
Board must determine what an
adequate consideration for the shares would be.
The determination may only be challenged on the grounds that it
constitutes breach of std of
conduct expected of directors and is in breach of their fiduc
duties
The effect that a successful challenge shall have on the
subscriber remains uncertain
Van der Linde argues that the conseq will depend on whether the
determination remains valid
or whether it is invalid by the challenge. If its invalid,
subscriber might be liable for difference
between the consideration already tendered and the adequate
determination as indicated after
the challenge. At this time, the effect remains unresolved.
5. Debentures
Def of debenture never finally been settled in SA law. For now
use debt instrument or debenture
Debenture = doc issued by Co acknowledging that its indebted to
the debenture holder of the amount
stated therein. Not every document acknowl debt is a
debenture
Debentures are one of the ways of raising capital for a Co. eg
loan from bank, hybrid securities. All
companies formed under old Act had plenary power, so the power
to borrow money from bank posed
not difficulty.
Debenture holder is creditor of the Co. he is not member of sh.
Debenture holders are entitled to a
copy of the Co annual finance statements.
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Board of directors will hve power to issue secured/unsecured
debentures unless MOI provides
otherwise. Debentures may carry right to attend and vote at gen
meetings and appoint directors
unless MOI provides otherwise.
6. Hybrid Securities
Def: securities that hve some of the features/character of both
equity and debt securities. They are a
dual form of securities.
Debt security: the holder is a creditor, not a member of the co.
He receives interests instead of
dividends.
Is the return on investment a dividend or an interest? Tax on
the two differs substantially.
Eg: pref shares resemble debt because they enjoy fixed prefer
return just like interest due on a debt.
IN the same way as debt, they carry no voting rights, only in
certain circumstances. But pref shares
are shares as they are paid out of distributable profits.
Convertible debenture: carries a right to be converted into
equity at some future date or compulsory
convertible debenture which is automatically converted into
equity after a number of years
USA case: John Kelley Co v Comm of Inland revenue: some of the
features of a debt security are as
follows (whether they have voting rights or not):
1. A fixed rate of interest irrespective of profits
2. A fixed date for repayment of capital;
3. Priority payment to sh
7. Securities registration and transfer
Only uncertific securities may transfer on the JSE. The bona
fide transferee is protected in case of
fraud, illeg or insolv of which he had no knowledge.
Securities exclude money market instruments.
Every co must maintain a register of its issued securities, with
the prescribed info, incl total nr of
uncertif securities, names and addresses of each holder with
certif. securies and nr of securities issued
The register is suffic proof of the facts recorded in it, in the
absence of contrary evid.
Each certif. has to be signed by 2 persons authorised by the
board. Sign can be affixed by
authographic, mechanic or electronic means. The certif. is bona
fide proof that the person names is the
securities holder.
Transfer of certif. securities must be reflected in the Co
securities register. Entry may be made only if
the transfer is evidence by a proper instrument of transfer. Co
has to record
name and address of the transferee,
description of the securities or interest that was
transferred,
date of transfer and
value of any outstanding consideration iro of shares
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Unit 6: Capital Maintenance
1. Capital Maintenance
Protection of creditors form the abuse of ltd liab by directors
and sh of a Co
Capit maint has little to do with ensuring that Co has adeq
capit to meet the claims of creditors.
Capit maintenance ensures that the issued share cap of a Co is
maintained, in the sense the Co may not
return or repay its issued share cap to its sh except where this
is authorised by the Act
The share capit does not have to be adeq.
Rules:
1. Par value shares may not be issued at a discount except in
accordance with s81 of Act
or s82 for no par value shares
2. Divid may not b paid out of share cap.
3. Comm. Law: inter may not be paid on shares out of share cap
even if the share cap of a
Co is being used to finan a project or venture which will not
make any profits until
completion
4. A sub could not be a member of its holding Co. now amended:
sub can hold max of
10% of shares of its holding Co
5. A co could not redeem its redeemable pref shares except in
accord with s98 of old Act.
6. Co could not purchase its own shares. Prohib has been
repealed
7. Prohib against a Co giving fin assist for its shares which
was perhaps origin linked to
the cap maint concept.
Co cant buy own shares: Trever v Whitworth: basis of rule = cap
main concept tht req issued share
cap of a Co to be maintained. Reason court gave this
decision:
a. A Co cant be member of itself
b. Purchase by a Co of its own shares is an unauthor reduction
of cap
c. It would enable a Co to manip the price of its shares on the
market
d. Enables directors to maintain themselves in control and to
buy-off bona fide oppon of the
management
Decision in Trevor case applied to SA corp law until 1999 when
it was repealed
New Act to replace capit maintenance with solv and liq test.
Solvency test: Considering all reasonably foreseeable financial
circumstances of the Co at that
time, the assets of the Co, fairly valued, equal or exceed the
liabilities of the Co as fairly valued.
Liquidity test: considering, it appears that the Co will be able
to pay its debts as they become
due in the ordinary course of business for a period of 12 months
after distribution.
Pmts for shre repurchases are to be treated as distribu by a Co
and must also comply with req of S46
of the Act
Repurchases: Co will be allowed to repurchase their shares
provided it reasonably appears the Co will
satisfiy the solv and liq tests immediately after completing the
share repurchase. Board of director
must acknowledge it applied the tests and reasonably concluded
Co will satisfy the tests.
In considering solv/liq test, board may consider only financial
info that satisfies financial reporting
stds. In consider fair valuation of Assets and liabilities,
board is entitled to consider any other
valuation reasonable in the circum.
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The co may, in 2 years after acquis, apply to court for an order
to have the repurchase reversed. Court
may then order:
d. Person from whom the shares were bought to return the
consideration received; and
e. Comp to issue to that person an equivalent nr of shares of
the same
class as those acquired.
A director present at the meeting when shares were acquired was
approved, and failed to vote against
it, will be liable for any loss, damages or costs sustained by
the Co
2. Distributions
Old Act: Co may make pmts incl div to their sh. Pmt incl any
transfer of money or other property to a
sh. Excludes a pmt iro of a share repurchase, redemption of
redeemable shares, issue of capitalisation
of shares and acquis ito order of court.
S90 enables Co to pay div out of capital if complies with
solv/liq test and not out of divisible profit as
with capital maintenance.
New Act: amount pd by Co for a share repurchase is also a
distribution. S90 of old Act excluded share
repurchase from distribution.
Distribution must be completed in 120 days. If not, must make
new solv/liq test
S46: following actions are regarded as distributions:
1. A direct/indir transfer by a Co of money or other prop of the
Co, other than its own shares, to or
for the benefit of its own sh, or those of another Co within the
same group of Co, in the form of
a. Dividend
b. Pmt in lieu of a capitalisation share
c. Consideration for acquis of its own shares or those of
another Co in the group
d. Any other transfer of money iro any of the shares
2. Incurrence of a debt or other obligation by Co for benefit of
one or more sh of any of the shares or
co within group
3. Forgiveness or waiver by Co of a debt or other obligations
owed to the Co by one or more sh
Distributions may be made in the following circum:
1. Board of directors must authorise the distrib unless it is
made ito existing legal obligation of the
Co or a court order
2. Must reasonably appear that the Co will satisfy the solv/liq
test immediately after completing the
distribution
3. Board must acknowl, with resolution, that it has applied the
tests and reasonably concluded that
the tests were satisfied immediately after completing the
distribution.
3. Options
Option contract = right to buy/sell a specif quantity of a
partic share/debenture within a stated period
of time at a stated price (strike price).
Co may grant an option in return for payment made to it. Or may
be granted as remuneration for
services rendered. Option holder is contingent creditor.
New Act: Co may issue options for the allotment or subscriptions
of authorised (unissued) shares or
other securities of the Co. Board of directors must determine
the consideration or other benefit and
terms on which it is issued.
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If board issues unauth shares contrary to Co MOI, directors who
were aware and voted in favour of
granting them become personally liable for any loss, damages or
costs sustained in conseq
4. Financial assistance for the purchase of shares
S44 of new Act: Co may assist a person in acquiring shares and
other securities in the Co, provided the
assistance is not prohib by MOI and certain requirements are
met.
The req:
1. Co MOI expressly permits the Co give such financial
assistance
2. Any restrictions on Co MOI have been complied with
3. Finan assist is given in pursuance of an employee
share-scheme
4. Pursuant to a special resolution passed within previous 2
years which approved such assistance
either for the spec recipient or gen for a categ of potential
recip
5. Board is satisfied that immediately after providing finan
assist the co would comply with solv/liq
test
6. Board is satisfied that the terms under which the fin
assistance is to be given are fair and reason to
the Co
Fail to comply with above prov = trans being null and void.
Respons director incur personal liability
for loss suffered by Co
Employee share schemes and money lending Co are exempt from the
prhib
Lipschitz v UDC Bank: transaction must be assessed in 2
phases:
1. Must be ascertained whether there was financial
assistance
a. Gradwell v Rostra Painters impoverishment test was formulated
to assist in
determining whether financial assist was provided
b. Impov: effect of the transaction must leave the Co poorer. If
so, finan assist was provided
c. Lipschitz: court found impov test was not only measurement.
Provide security or exposing
Co to risk would also qualify (eg person made a loan to purchase
shares in Co, and the Co
stood surety for the loan = fin assist)
d. If a Co buys assets from person to enable him to buy shares,
the facts will determine
whether there was fin assist.
2. Must be determined whether assist was for buying shares
When trans passes these two phases it will comply with S44
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Unit 7: Group
1. Definitions
Existence of several Co that are associated as a result of
common or interlocking sh
Essential: existence of control thru 1 co of one or more subs
Co.
Act: holding Co (not being wholly
2. Holding and subsidiary companies under the old act
One Co is holding Co of another, if that Co is a subs
Subs definit as follows:
f. Membership together with control of the board or
g. The holding of more than half of the equity share capit of
the subs Co
h. Act: contro
i. Act: control over right to appoint or remove d
3. The 2008 Companies Act: Subsidiary relationships
Scan in S3 on p 73
Unit 7: Groups of Companies
Existence of several Co that are associated as a result of
common or interlocking sh
Essential: existence of control thru 1 co of one or more subs
Co.
Act: holding Co (not being wholly-owned) together with all its
subs Co
ng and subsidiary companies under the old act
One Co is holding Co of another, if that Co is a subs
Membership together with control of the board or
The holding of more than half of the equity share capit of the
subs Co
Act: control over maj of voting rights in the Co
Act: control over right to appoint or remove direc
The 2008 Companies Act: Subsidiary relationships
Existence of several Co that are associated as a result of
common or interlocking sh
Membership together with control of the board or
The holding of more than half of the equity share capit of the
subs Co
ctors
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New act follows essential idea of act of 73: control is
determined by voting power
4. Group of companies (2008 Act)
New def added: 2 or more comp that are related or
interrelated.
Indiv is related to another indiv if they are married or live
together ina relationship similar to
marriage or are sep by at least 2 degrees of natural affinity.
(birth or adoption)
Spousal relationships are included
Indiv is related to a juristic person if that indiv is
directly/ind controls juristic person ito def
of control
Juristi is related to another juristic if either of them
dir/indir controls the other entity
Control: owns majo of members interest
5. Legal consequences of a group of comp
1. Holding Co must, as gen rule, produce group annual fin statem
be4 its AGM
2. A sub may not become a member of its holding Co. Sub is
permitted to hold a max of 10% of the
shares of its holding Co.
3. Prescribed info must be disclosed in its annual fin statem
where a sub makes a loan to or provides
suc for its holding Co or fellow sub
4. Where sub co has an indp board of directors, its holding Co
does not owe the sub any fiduc duties
or delictual duty of care.
5. Board of sub Co is depend: person who procures the election
of the board of dir must observe the
utmost good faith in his dealings with the Co
6. Director of sub does not owe a fiduc duty to the holding co
as his duties are owed solely to the sub
co.
7. Solvency and liq test:
a. Whether the Co assets equal or exceed its liab;
b. If Co is a member of a group, whether its aggreg assets equal
or exceed its consol liab as
fairly valued.
Test applied is to the Co itself and not consolidated position.
Crucial test should be of the assets and
liab of th Co, not the group.
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Unit 8: Takeovers, offers and fundamental transactionsUnit 8:
Takeovers, offers and fundamental transactionsUnit 8: Takeovers,
offers and fundamental transactionsUnit 8: Takeovers, offers and
fundamental transactions 1. Intro
Background:
The 73 Act dealt with above transactions under different
sections. In new Bill they are all
dealt with in one chapter (Ch 5). Amalgamations and mergers are
now part of SA Law.
The new Bill adopts some of the fundamental features of USA
regulations of mergers:
1. uniform rules governing all fundamental transactions
2. considers mergers/amalg, schemes of arr and disposals of all
or greater part of
Co assets as fundamental transactions
3. fund trans are prim governed by the decisions of concerned sh
and judic
involvement is very minimal.
Fund transactions (FTs)
Ch 5 of the Bill is divided into 3 parts:
Part A approval of certain FT
Part B authority of Takeover Regulation Panel and the Takeover
Regulations
Part C Regulation of affect Transactions and offers
Common Terms and definitions
FTs: amalgamations or mergers; disposal of all or the greater
part of the assets or
undertaking; schemes of arrangement
Amalgamation/merger:
Transaction, series of transactions, involving 2 or more Co,
resulting in the survival of
one or more of the merging Cos or the formation of 1 or more new
Cos.
The Cos combine their assets and liabilities
Where new Co is started, all merging co cease to exist: eg SFW
and Distillers
merge to form Distell
Disposal/sale of all/greater part of assets
Sale by a Co of all/greater part. It must be of 50% or more of
the assets
Schemes of arrangement
Any arrangement/agm between Co and holder of any class of
securities, incl reorgan
of the share capital of by Co by way of:
5. Consol of secure of different classes;
6. Division of secure into diff classes;
7. Expropr of secur from holders;
8. Exchanging any of its secure for other secure;
9. A re-acquis by the Co of its secure
10. Combination of methods above
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2. Disposal or sale of all or the greater part of the assets or
undertaking of Co
Regulated by S112 of the Bill
Exemptions:
Does not apply to sales/disposals of all/ in 3 distinct
situations:
1. Where transaction is a result of a business rescue plan
adopted in accordance
with Ch 6
2. Where transactions is between a wholly-owned subsid and its
holding Co and
3. Where trans is between or among:
a. 2 or more wholly-owned subs of the same holding Co or
b. A wholly-owned sub of a holding Co on one hand, and its hold
Co and
1 or more wholly-owned subs of that holding Co on the other
hand
Legal reqs and process to follow
May not dispose unless it has been approved by a special
resolution of the sh
A notice of sh meeting to consider the resolution must incl a
written summary of the precise terms of
the trans to be considered at the meeting.
Any asset to be disposed of must be given its fair market value
at the date of the proposal, in
accordance with finan reporting stds. (stds are issued by Min of
Trade and Industry after consult with
fin report stds council)
The Bill requires that any agm by or obo Co is binding on Co
only to the extent that the agm was
expressly authorised in advance by a special r