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Companies Act, 2008 (Act No. 71 of 2008)

Chapter 5 : Fundamental Transactions, Takeovers and Offers

Part B : Authority of Panel and Takeover Regulations

118. Application of this Part, Part C and Takeover Regulations

 

 

1) Subject to subsections (2) to (4), this Part, Part C and the Takeover Regulations apply with respect to an affected transaction or offer involving a profit company or its securities if the company is—
b) a state-owned company, except to the extent that any such company has been exempted in terms of section 9; or
c) a private company, but only if—
i) the percentage of the issued securities of that company that have been transferred, other than by transfer between or among related or inter-related persons, within the period of 24 months immediately before the date of a particular affected transaction or offer exceeds the percentage prescribed in terms of subsection (2); or
ii) the Memorandum of Incorporation of that company expressly provides that the company and its securities are subject to this Part, Part C and the Takeover Regulations, irrespective of whether the company falls within the criteria set out in subparagraph (i).

 

2) The Minister, after consulting the Panel, may prescribe a minimum percentage, being not less than 10%, of the issued securities of a private company which, if transferred within a 24-month period as contemplated in subsection (1)(c)(i), would bring that company and its securities within the application of this Part, Part C, and the Takeover Regulations in terms of that subsection.

 

3) Despite the definition of ‘affected transaction’ set out in section 117(1)(c), this Part, Part C and the Takeover Regulations do not apply to—
a) a proposal to dispose, or disposal, of all or the greater part of the assets or undertaking of a regulated company;
b) a proposed amalgamation or merger involving at least one regulated company; or
c) a scheme of arrangement proposed by a regulated company,

to the extent that any such affected transaction is pursuant to or contemplated in an approved business rescue plan in terms of Chapter 6.

 

4) If there is a conflict between any provision of this Part, Part C, or the Takeover Regulations, and any provision of another public regulation
a) the conflicting provisions apply concurrently to the extent that it is possible to apply and comply with one of the inconsistent provisions without contravening the second; and
b) to the extent that it is impossible to apply or comply with one of the inconsistent provisions without contravening the second, the provisions of the other public regulation prevail.

 

5) A person granted an option to acquire shares with a voting right in a regulated company is presumed to have acted in concert with the grantor of the option, unless the voting rights are retained by the grantor.

 

6) A presumption under subsection (5) may be rebutted by evidence to the contrary.