Stamp Duties Act, 1968 (Act 77 of 1968)
R 385
Companies Act, 1973 (Act No. 61 of 1973)1. Definitions |
| 1) | In this Act, unless the context otherwise indicates- |
Accounting records
in relation to a company, includes accounts, deeds, writings and other documents.
Annual duty
[Deleted by section 1 of Act No. 31 of 1986]
Annual return
[Deleted by section 1 of Act No. 31 of 1986]
Articles
in relation to a company, means the articles of association of that company for the time being in force, and includes any provision, in so far as it applies in respect of that company, set out in Table A or Table B in Schedule 1.
Books or papers
and "books and papers" include accounts, deeds, writings, electronic data reduced to paper format and ether documents.
Certified
means certified in the manner prescribed by the Minister to be a true copy, or a correct translation.
Company
means a company incorporated under Chapter IV of this Act and includes any body which immediately prior to the commencement of this Act was a company in terms of any law repealed by this Act.
Controlled company
[Deleted by section 1(a) of Act No. 82 of 1992]
Controlling company
[Deleted by section 1(a) of Act No. 82 of 1992]
Council
means the Financial Reporting Standards Council established by section 440P;
Court
in relation to any company or other body corporate, means the Court which has jurisdiction under this Act in respect of that company or other body corporate, and. in relation to any offence under this Act, includes a magistrate's court having jurisdiction in respect of that offence.
Debenture
includes debenture stock, debenture bonds and any other securities of a company, whether constituting a charge on the assets of the company or not.
Deregistration
in relation to a company, means the cancellation by the Registrar of the registration of the memorandum and articles of the company and, in relation to an external company, the cancellation by the Registrar of the registration of the memorandum of the external company; and "deregister" has a corresponding meaning.
Director
includes any person occupying the position of director or alternate director of a company by whatever name he may be designated.
Director of Public Prosecutions
means a Director of Public Prosecutions appointed under section 13( 1) of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998), who has jurisdiction;
Electronic
includes created, recorded, transmitted or stored in digital or other intangible form of electronic, optical or similar means.
Equity share capital
and "equity shares", in relation to a company. mean its issued share capital and shares, excluding any part thereof which, neither as respects dividends nor as respects capital, carries any right to participate beyond a specified amount in a distribution.
Existing company
means any body which immediately prior to the commencement of this Act was a company in terms of any law repealed by this Act.
External company
means a company or other association of persons, incorporated outside the Republic, the memorandum of which was lodged with the Registrar under the repealed Act, or which, since the commencement of this Act, has established a place of business in the Republic and for purposes of this definition establishing a place of business shall include the acquisition if immovable property.
Financial report
means financial statements and any financial information in a circular, a prospectus or a provisional announcement of results upon which users may reasonably rely;
Financial reporting standards
means statements of Generally Accepted Accounting Practice adopted by the Accounting Practices Board prior to the establishment of the Council, and thereafter issued in terms of section 440U(2).
Financial statements
means annual financial statements, provisional annual financial statements and interim or preliminary reports and includes, where applicable, group and consolidated financial statements.
Foreign country
means any state, country, colony or territory other than the Republic.
Holding company
means a holding company as defined in subsection (4).
Inspector
means a person appointed by the Minister in terms of section 254, 257 or 258.
Judicial manager
means the final judicial manager referred to in section 432.
Liquidator
in relation to a company, means the person appointed under Chapter XIV as liquidator of such company, and includes any co-liquidator and any provisional liquidator so appointed.
Manager
in relation to a company. means any person who is a principal executive officer of the company for the time being, by whatever name he may be designated and whether or not he is a director.
Master
means the Master of the High Court, and in relation to-
| a) | a company in respect of which application is made to a Court for a winding up or judicial management order, the Master having jurisdiction in the area of jurisdiction of the Court where application is made; |
| b) | a company being wound up by the Court or under judicial management, the Master having jurisdiction in the area of jurisdiction of the Court which issued the winding-up or judicial management order; |
| c) | a company other than a company referred to in paragraph (a) or (b), the Master having jurisdiction in the area in which the registered office of that company is situated; |
| d) | any other body corporate, the Master having jurisdiction in the area where the main place of business of that body corporate is situated. |
Memorandum
in relation to a company, means the memorandum of association of that company for the time being in force; and in relation to an external company, means the charter, statutes, memorandum of association and articles, or other instrument constituting or defining the constitution of the company.
Minister
in relation to any matter to be dealt with in the office of a Master in connection with the winding-up or judicial management of companies, means the Minister responsible for Justice and, in relation to any other matter, means the Minister of Trade and Industry.
Officer
in relation to a company, includes any managing director, manager or secretary thereof;
Panel
means the Financial Reporting Investigations Panel established by section 440W.
Place of business
means any place where the company transacts or holds itself out as transacting business and includes a share transfer or share registration office.
Prescribed
means prescribed by or under this Act.
Prospectus
means any prospectus, notice, circular, advertisement or other invitation, irrespective of whether it is done in non-electronic or any electronic manner, offering any shares of a company to the public.
Provisional judicial manager
means a provisional judicial manager appointed by the Master under section 429 .
Registrar
means the Registrar of Companies appointed under section 7.
Regulations
means the regulations made or in force under this Act.
Republic
[Deleted by Proclamation No. 234 of 1978]
Secretary
includes any official of a company by whatever name he may be designated, including a body corporate, who or which is performing the duties normally performed by a secretary of a company.
Share
in relation to a company, means a share in the share capital of that company and includes stock; and in relation to an offer of shares for subscription or sale, includes a share and a debenture of a company, whether a company within the meaning of this Act or not, and any rights or interests (by whatever name called) in a company or in or to any such share or debenture.
Signature
includes an electronic signature and an advanced electronic signature as defined in section 1 of the Electronic Communications and Transactions Act, 2002 (Act No. 25 of 2002).
Special resolution
in relation to a company, means a resolution passed at a general meeting of that company in the manner provided for by section 199.
Subsidiary company
or "subsidiary" means a subsidiary company as defined in subsection (3).
Territory
[Deleted by Proclamation No. 234 of 1978]
The repealed Act
means the Companies Act, 1926 (Act No. 46 of 1926).
This Act
includes the regulations.
User
in relation to a financial report, means a shareholder, prospective shareholder, creditor, regulator or any person who relies on information contained in the report.
Wholly owned subsidiary
means a wholly owned subsidiary as defined in sub-section (5) .
Winding-up order
means any order of court whereby a company is wound up and includes any order of court whereby a company is placed under provisional winding-up for so long as such order is in force.
| 1A) | Subject to subsection (1B), the performance of the acts denoted by any of the following words or expressions, namely – |
| a) | "give notice"; |
| b) | "issue, distribute, deliver or cause it to be done"; |
| c) | "lodge"; |
| d) | "lodge in the prescribed form" |
| e) | "lodge in the prescribed manner"; |
| f) | "lodge under cover of" |
| g) | "notify in the prescribed form"; |
| h) | "payment of prescribed fee"; |
| i) | "publish"; |
| j) | "registration"; and |
| k) | "written application", |
| l) | and any word or expression derived therefrom, must be regarded as including all electronic methods of performing such acts. |
| 1B) |
| a) | Subsection (1A) shall not apply to a section of this Act until the Registrar publishes a notice in the Gazette making it applicable to that section. |
| b) | Different dates may be determined by the Registrar in respect of the application of subsection (1A) to different sections of this Act. |
| 2) | A person shall not be deemed to be, within the meaning of any provision of this Act. a person in accordance with whose directions or instructions the directors of a company are accustomed to act by reason only that the directors of the company act on advice given by him in a professional capacity. |
| 3) |
| a) | For the purposes of this Act. a company shall be deemed to be a subsidiary of another company if – |
| i) | that other company is a member of it and- |
| aa) | holds a majority of the voting rights in it; or |
| bb) | has the right to appoint or remove directors holding a majority of the voting rights at meetings of the board; or |
| cc) | has the sole control of a majority of the voting rights in it, whether pursuant to an agreement with other members or otherwise; or |
| ii) | it is a subsidiary of any company which is a subsidiary of that other company: |
| iii) | subsidiaries of that other company or that other company and its subsidiaries together hold the rights referred to in subparagraph (i) (aa), (bb) or (cc), |
| b) | In determining whether a company holds the majority of the voting rights as contemplated in paragraph (a) (i) (aa)— |
| i) | Voting rights which are exercisable only in certain circumstances shall be taken into account only- |
| aa) | when those circumstances have arisen, and for so long as they continue; |
| bb) | when those circumstances are under the control of the person holding the voting rights; |
| ii) | voting rights held by a person in a fiduciary capacity shall be treated as nor held by him but by the beneficiary of such voting rights; |
| iii) | voting rights held by a person as nominee for another person shall be treated as not held by him but by that other person, and voting rights shall be deemed to be held by a nominee for another person if they are exercisable only on the instructions or with the consent or concurrence of that other person. |
| c) | A body corporate or other undertaking which would have been a subsidiary of a company had the body corporate or other undertaking been a company shall be deemed to be a subsidiary of that company. |
| cA) | For the purposes of this subsection 'hold' or any derivative thereof refers to the registered or beneficial holder (direct or indirect) of shares conferring a right to vote. |
| 4) | For the purposes of this Act, a company shall be deemed to be a holding company of another company if that other company is its subsidiary. |
| 5) | For the purposes of this Act, a subsidiary shall be deemed to be a wholly owned subsidiary of another company if it has no members except that other company and a wholly owned subsidiary of that company and its or their nominees. |
| 6) |
| a) | A company is a widely held company: if- |
| i) | its articles provide or an unrestricted transfer of its shares; |
| ii) | it is permitted by its articles to offer shares to the public; |
| iii) | it decides by special resolution to be a widely held company; or |
| iv) | it is a subsidiary of a company described in subparagraph (i), (ii) or |
| b) | A company with two or more types or classes of shares is a widely held company if its articles provide for the unrestricted transfer of shares in one or more of these types or classes. |
| c) | For the purposes of this subsection- |
| i) | a transfer of shares is unrestricted if it is not subject to an effective right of pre-emption; |
| ii) | an effective right of pre-emption is a right of pre-emption which operates in favour of all shareholders of the company and upon every proposed sale of shares to a person who is not a shareholder of the company. |
| d) | A company is a limited interest company if it is not a widely held company. |
| e) | An effective right of pre-emption contained in the articles of a limited interest company shall be deemed also to operate, with the necessary changes, upon- |
| i) | the disposal of a beneficial interest in a share of the company; and |
| ii) | an offer by the company of shares created in terms of section 75(1) to any person who is not a shareholder of the company. |
| f) | For the purposes of paragraph (e)(i), 'beneficial interest' shall be as defined in subsection 140A(1), except that it shall apply in relation to a share rather than to a security, |
| 7) | A widely held company, which on or prior to its annual general meeting ceases to fall within the definition of a widely held company, may by a special resolution passed at that meeting become a limited interest company if the directors certify that the company will not in the following financial year seek to become a widely held company. |
