Companies Amendment Act [No. 35 of 2001]


Government Gazette

REPUBLIC OF SOUTH AFRICA
Vol. 438 Cape Town 3 December 2001 No. 22885
THE PRESIDENCY
No. 1261 3 December 2001
It is hereby notified that the President has assented to the following Act, which is hereby published for general information:–
No. 35 of 2001: Companies Amendment Act, 2001


2 No. 22885 GOVERNMENT GAZETTE. 3 DECEMBER 2001
Act No. 35,2001 COMPANIES AMENDMENT ACT, 2001
GENERAL EXPLANATORY NOTE:
r I Words in bol type in square b ackets indicate omissions from existing enactment.3.
Words underlined with a solid line indicate insertions in existing enactment:;.
(English text signed by the President.) (Assented to 28 November 2001.)
To amend the Companies Act, 1973, so as to allow the electronic lodgement of and access to all documents which have been or are required to be lodged in terms of this Act; to provide for the payment of fees in respect of documents so lodged; to further regulate the acquisition by a company of its own shares; to amend certain obsolete provisions; and to effect certain textual alterations; and to provide for matters connected therewith.
E IT ENACTED by the Parliament of the Republic of South Africa, as B follows:--- Amendment of section 1 of Act 61 of 1973, as amended by section 1 of Act 76 of 1974, section 1 of Act 64 of 1977, section 26 of Proclamation 234 of 1978, section 1 of Act 84 of 1980, section 1 of Act 83 of 1981, section 1 of Act 29 of 1982, section 1 5 of Act 31 of 1986, section 1 of Act 82 of 1992, section 1 of Act 35 of 1998 and section 2 of Act 37 of 1999
1. Section 1 of the Companies Act, 1973 (hereinafter referred to as the principal Act), is hereby amended-
(a) by the substitution in subsection ( I ) for the definition of ‘‘ ‘books or papers’ 10 and ‘books and papers’ ” of the following definition:
“ “books or papers’ and ‘books and papers’ include accounts, deeds, writings, electronic data reduced to paper format and other documents;”;
(6) by the insertion after the definition of “director” of the following definition: “ ‘electronic’ ~ncludes created, recorded, transmitted or stored in digital 15 or-other intangible form of electronic, optical or similar means;”;
(c) by thesubstitution Ln subsection (1) for the definition of “prospectus” of the
“ ‘prospectus’ means any prospectus, notice, circular, advertisement or other invitation, irrespective of whether it is done in non-electronic or 20 L an’, electronic manner, offering any shares of a company to the public;”; and
following definition:
(d) by the ilnsertion after subsection (1 of the following subsections: “(1A) Subject to subsection
by any of the following words ( a ) ‘give notice’; (b) ‘issue, distribute, deliver or cause it to be done’; (c) ‘lodge’; (d) ‘lodge in the prescribed form’:
Act No. 35,2001 (COMPANIES AMENDMENT ACT. 2001
(e) ‘lodge in the prescribed manner’; cf) ‘lodge under cover of’; (g) ‘notify in the prescribed form’; (h) ‘payment of prescribed fee’; (i) ‘publish’; ( j ) ‘regishation’; and i(k) ‘written application’, ,and any word or expression derived therefrom, must be regarded as :including all electronic methods of performing such acts.
(IB) (a) Subsection (1A) shall not apply to a section of this Act until 1:he Registrar publishes a notice in the Gazette making it applicable to I:hat section.
(6) Different dates may be determined by the Registrar in respect of the application of subsection (1A) to different sections of this Act.”.
Amendment of section 9 of Act 61 of 1973, as amended by section 1 of Act 59 of 1978, section 2 of Act 29 of 1982 and section 2 of Act 70 of 1984
2. Section 9 (of the principal Act is hereby amended- (a) by the insertion after subsection (1) of the following subsection:
“(1A) Subject to subsection (4), any person may, on payment of the prescribed fee, through any electronic medium approved by the Registrar- l a ) inspect any document which has been lodged with the Registrar
(b) obtain a copy of or extract from any such converted document.”;
(b) by the substitution in subsection (2) for the words following upon paragraph
under tlnis Act and converted into electronic format; or
and
(bj of the following words: “no fee refe.rred to in subsection (1) or (IA) shall be payable.”.
Amendment of section 10 of Act 61 of 1973, as amended by section 2 of Act 31 of 1986
3. Section 10 of the principal Act is hereby amended- (a) by the substitution in subsection (1) for paragraph (c) of the following
“(c) in such other manner, including such electronic form of transfer of paragraph:
money, as the Registrar may direct.”; and (b) by the substitution for subsection (2) of the following subsection:
“(2) No document, form, return or notice in respect of which any fee or payment is laid down under this Act, shall be complete unless proof payment of the prescribed fee, additional fees (if any) or other moneys has been [delivered to] acknowledged as having been received by the R.egistrar.” .
Amendment of section 15 d Act 61 of 1973, as amended by section 1 of Act 111 of 1976 and section 2 of Act 59 of 1978
4. Section 1.5 of the principal Act is hereby amended by the substitution in subsection
“(bA) providing for the reproduction of any records in the Companies Registra- tion office or the office of the Master by microfilm, microcard, miniature photographic process, the conversion into electronic format in such a way as to allow such records to be reconverted without changing their original contents or any other process deemed suitable by the Minister;”.
(1) for paragraph (bA) of the following paragraph:
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Act No. 35,2001 COMPANIES AMENDMENT ACT. 2001
Amendment of section 46 of Act 61 of 1973, as amended by section 10 of Act 83 of 1981
5. Section 46 of the principal Act is hereby amended bly the substitution for subsection (1) of the following subsection:
“(1) An order under section 45 for the change of a name or translated name of a 5 company or a shorten1:d form of a name or translated name of a company or a name referred to in section 43(2) shall be issued by the ]Registrar in writing and sent by registered post to the company at its registered oflice or postal address, or to the person referred to in section 43(2) at his or her last-known address, and shall require such company or such person to comply with the order within two months 10 from the date of its issue.”.
Amendment of section 50 of Act 61 of 1973, as amended by section 12 of Act 83 of 1981, section 1 of Act 29 of 1985 and section 4 of Act 35 of 1998
6. Section 5 0 of the principal Act is hereby amended by the substitution in subsection (1) for paragraph (c) of the foll wing paragraph: 15
“(c) shall have its name and registration number m’entioned in legible characters in all notices and other official publications of the company, including notices or other official publications in electronic format, and in all bills of exchange, promissory note,;, endorsements, cheques, alnd orders for money or goods purporting to be signed by or on behalf of the company and in all letters, 20 delivery notes, invoices, receipts, and letters of credit of the company”.
Amendment of section 63 of Act 61 of 1973, as amended by section 4 of Act 76 of 1974, section 3 of Act 29 of 1982, section 2 of Act 29 of 1985, section 4 of Act 31 of 1986 and section 2 of Act 78 of 1989
7. Section 63 of the principal Act s hereby amended- 25 (a ) by the substitution for subsection (1) of the following subsection:
“ ( I ) If a memorandum and articles complying with the requirements of this Act together with [two copies] a copy thereof certified by a notary public as true [copies] a are lodged with the Registrar in the manner prescribed, he or she shall upon payment of the prescribed fee, register 30 such memorandum and articles, [impress] place his seal on [one]
certificate provided for in section 64.”; a.nd (b) by the addition to subsection (4) of the following proviso:
l a : Provided that the Registrar may change such registration number in 35 . . order to rectify duplications of such nulnbers or to achieve any other
objective which it is necessary or expedient to achieve for the proper maintenance of the register of companies”.
__ the copy [thereof], and endorse thereon the date of registration and the
Repeal of sections 73A, 73B, 73C and 73D of Act 61 (of 1973
8. Sections 73A, 73B, 73C and 73D of the principal Act are hereby repealed. 40
Amendment of’ section 76 of Act 61 of 1973, as amended by section 5 of Act 76 of 1974, section 3 of Act 82 of 1992 and section 6 of Act 37 of 1999
9. Section 76 of the principal Act is hereby amended by the substitution for subsection (1) of the following subsec1:ion:
“(1) Where a company which is not a banking institution in terms of the Banks 45 Act, [1965 (Act No. 23 of 1965)] 1990 (Act No. 94 of 1990), issues shares at a premium, whether for cash or otherwise, a sum equal to the aggregate amount or value of the premiums ton those shares shall be transferred to an account to be called the ‘share premium account’, and the provisions of this Act relating to the [reduction of the] share capital of a company shall, except as provided in this SO section, apply as if the. share premium account were paid-up share capital of the company.”. ’
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Act No. 35,2001 (COMPANIES AMENDMENT ACT. 2001
Amendment of section 87 of Act 61 of 1973, as substituted by section 11 of Act 37 of 1999
10. Section 87 of the principal Act is hereby amended by the substitution in subsection (2) for paragraph ( a ) of the following paragraph:
“(a) if, and to the extent that, the shares are acquired [in terms of the] & special 5 resolution passed in terms of section [85(3)] !35(1) and the approval by such special resolution is a specific approval contemplated in section 85(2);”.
Amendment of section 94 of Act 61 of 1973, as amended by section 6 of Act 70 of 1984
11. Section 94 of the principal Act is hereby amlxded by the substitution for 10
“(2) Any such signatures may be &xed to Gr placed on the certificate by subsection (2) of the following subsection:
autographic, [or] mechanical or electronic means.”.
Amendment of section 961 of Act 61 of 1973, as amended by section 4 of Act 64 of 1977, section 15 of Act 69 of 1989, section 6 of Act 35: of 1998, section 15 of Act 37 15 of 1999 and section 80 of Act 53 of 1999
12. Section 98 of the principal Act is hereby amended by the substitution in subsection
“(b) where any such sthares are redeemed otherwise than out of the proceeds of a fresh issue, there shall, out of profits which would otherwise have been 20 available for dividends, be transferred to a reserve fund, to be called the ‘capital redemption reserve fund’, a sum equal to the nominal amount of the shares redeemed, or if shares of no par value, ‘to the book value of the shares redeemed, and the provisions of this Act relating to [the reduction ofl the share capital of a company shall, except as provided in this section, apply as 25 if the capital redemption reserve fund were share capital of the company;”.
(1) for paragraph (b) of the proviso of the following paragraph:
Amendment of section 105 of Act 61 of 1973
13. Section 105 of the principal Act is hereby amended by the substitution in subsection (4) for the words preceding the proviso of the following words:
“The register of members may be kept either by making entries in bound books or 30 by recording the particulars required in any other manner, including the electronic recording of such particulars, and, in the case of a person who has ceased to be a member, also by microfilm or microcard or by miniature photographic or electronic process or by any other process which accurately reproduces and forms a durable or sustainable medium for recording and reproducing such particulars”. 35
Amendment of section 106 of Act 61 of 1973
14. Section 106 of the principal Act is hereby amended by the substitution for
“(2) The index, which may be in the form of a card index [and] or in any electronic format which accurately reproduces the :required information, shall be 40 deemed to be a part of the register of members, and shall in respect of each member, contain a sufficient indication to enable the account of that member in the register to be readily found.”.
subsection (2) of the following subsection:
Amendment of section 1131 of Act 61 of 1973, as amenlded by section 6 of Act 59 of 1978 45
15. Section 113 of the pIincipa1 Act is hereby amended by the substitution for the expression “twenty-five cents”, wherever it occurs, of the expression “R10”.
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Act No. 35,2001 COMPANIES AMENDMENT ACT. 2001
Amendment of section 126 of Act 61 of 1973, as amended by section 13 of Act 83 of 1981
16. Section 126 of the principal Act is hereby amended by the substitution for subsection (3) of the following subsection:
“(3) Any signature referred to in subsection (2) rnay be affixed to or placed on a 5 debenture or debenture certificate by autographic, [or] mechanical or electronic means.”.
Amendment of section 132 of Act 61 of 1973
17. Section 132 of the principal Act is hereby amended by the substitution in paragraph (dj for subparagraph (i) of the following subparagraph: 10
“(i) introduces or inserts into or engraves or makes upon any plate, wood, stone or other materia1,cluding any electronic material or process, any certificate as to any interest in a company or any share warrant or coupon or document purporting to be snch interest, share warrant or coupon issued or made by any particular company in pursuance of this Act or to be a blank certificate, share 15 warrant or coupon so issued or made or to be a part of such a certificate, share warrant or coupon; or”.
Amendment of section 136 of Act 61 of 1973
18. Section 136 of the principal Act is hereby amended by the substitution in subsection (1) for paragraph (b) of the following para raph: 20
“(b) A certification shall for [the] purposes of this section be deemed to be signed if it purports to be authenticated by the signature or initials of any person whether by autographic, electronic or mechanical means, unless it is shown that the signature or initial is not that of a person authorized to certify transfer of securities on behalf of the company.”. 25
Amendment of section 141 of Act 61 of 1973
19. Section 141 of the principal Act is hereby amended by the substitution for
“(1) No person shall either orally or in writing (including any newspaper advertisement or any advertisement in electronic f c a ) make an offer of shares 30 for sale to the public or issue, distribute or publish any y& material which in its form and context is calculated to be understood as an offer as aforesaid unless it is accompanied by a wrdten statement containing the particulars required by this section to be included therein.”.
subsection (1) of the following subsection:
Amendment of section 157 of Act 61 of 1973 3s
20. Section 157 of the principal Act is hereby amended by the substitution in subsection (1) for the words preceding paragraph (a) of the following words:
“Every newspaper or other adve&em&; [whatsoever] in any format, including electronic format, offering or calling attention to an offer or intended offer of shares of a company to the pulblic shall be deemed to be a prospectus issued by the person 40 responsible for publishing or disseminating the advertisement (and all enactments and rules of law as to the contents of prospectuses and as to the liability in respect of statements in and omissions from prospectuses or otherwise relating to prospectuses shall apply and have effect accordingly), unless it contains no more information than the fcdlowing:”. 45
Amendment of section 171 of Act 61 of 1973
21. Section 171 of the principal Act is hereby amlznded by the substitution in
“A company shall not issue or send, irrespective of whether it is in electronic or any other format, to any person in the Republic any trade catalogue, trade circular or SO
subsection (1) for the words preceding paragraph (a) of fhe following words:
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Act No. 35,2001 COMPANIES AMENDMENT ACT, 2001
business letter bearing the company’s name unless there is stated thereon or therein in a form capable of retrieving therefrom in respect of every director-”.
Amendment of section 192 of Act 61 of 1973
22. Section 192 of the principal Act is hereby amended by the substitution in
“: Provided that a priv,ate company may, instead of publishing the said notice in a newspaper, send it by registered post, or by electronic post if so authorized by its articles, to the members not later than three days after the adjournment.”.
subsection (2) for the provi:;o of the following proviso:
Amendment of section 211 of Act 61 of 1973, as substituted by section 13 of Act 59 of 1978
23. Section 211 of the l~rincipal Act is hereby amended by the substitution for
“(7) Any company which publishes, whether in non-electronic or electronic format, and every direc’tor or officer of the company who knowingly is a party to the publication of, the name of any person as a director of the company when such person is not a director or has not validly been appointed as director of the company, shall be guilty of an offence.”.
subsection (7) of the following subsection:
Amendment of section 249’ of Act 61 of 1973
24. Section 249 of the principal Act is hereby amended by the substitution for
“(1) Any person w.ho in any statement, return, report, certificate, financial statement or other docu rnent required by or for the purposes of any provision of this Act, whether in non-ekctronic or electronic format, makes a statement which is false in any material ]particular, knowing it to be- false, shall be guilty of an offence.”.
subsection (1) of the following subsection:
Amendment of section 250 of Act 61 of 1973
25. Section 250 of the principal Act is hereby amended by the substitution for
“(1) Any director or officer of a company or any other person who conceals, destroys, mutilates, falsifies or makes any false entry in or, with the intent to defraud or deceive, malses any erasure in any book (including any minute book), register, document, financial record or financial statement of any company,
subsection (1) of the following subsection:
irrespective of whether it is or has been kept in electronic format, shail, subject to the provisions of subsection (2), be guilty of an offence.”.
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Amendment of section 302 of Act 61 of 1973, as amended by section 23 of Act 76 of 1974
26. Section 302 of the principal Act is hereby amended by the addition to subsection
“: Provided that, if so authorized by a company’s articles, a copy of its financial statements may be made available in electronic format to all persons who have agreed thereto in writing”.
(1) of the following proviso:
Amendment of section 441 of Act 61 of 1973, as substituted by section 19 of Act 35 of 1998
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27. Section 441 of the principal Act is hereby amended by the substitution in subsection (1) for paragraph (12) of the following para raph: 45
“(h) in section 168, 185, 2.56(6), 312(4), [or] 331(1) or 333(1), to a fine;”.
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Act No. 35,2001 COMPANIES AMENDMENT ACT, :!001 -
Substitution of certain expression in Act 61 of 1973
28. The principal Act is hereby amended by the substitution for the expression “certified post”, wherever it occurs, of the expression “registered post”.
Repeal of section 3 of Act 18 of 1990
29. Section 3 of the Companies Amendment Act, 1990, is hereby repealed.
Short title
5
30. This Act is called the Companies Amendment Act., 2001