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

Chapter 2 : Formation, Administration and Dissolution of Companies

Part B : Incorporation and legal status of companies

13. Right to incorporate company or transfer registration of foreign company

 

 

1) One or more persons, or an organ of state, may incorporate a profit company, and an organ of state, a juristic person, or three or more persons acting in concert, may incorporate a non-profit company, by—
a) completing, and each signing in person or by proxy, a Memorandum of Incorporation—
i) in the prescribed form; or
ii) in a form unique to the company; and
b) filing a Notice of Incorporation, in accordance with subsection (2).

 

2) The Notice of Incorporation of a company must be—
a) filed in the prescribed manner and form, together with the prescribed fee; and
b) accompanied by a copy of the Memorandum of Incorporation, subject to any declaration contemplated in section 6(14)(b).

 

3) If a company’s Memorandum of Incorporation includes any provision contemplated in section 15(2)(b) or (c), the Notice of Incorporation filed by the company must include a prominent statement drawing attention to each such provision, and its location in the Memorandum of Incorporation.

 

4) The Commission
a) may reject a Notice of Incorporation if the notice, or any thing required to be filed with it, is incomplete, or improperly completed in any respect, subject to section 6(8); and
b) must reject a Notice of Incorporation if—
i) the initial directors of the company, as set out in the Notice, are fewer than required by or in terms of section 66(2); or
ii) the Commission reasonably believes that any of the initial directors of the company, as set out in the Notice, are disqualified in terms of section 69(8), and the remaining directors are fewer than required by or in terms of section 66(2).

 

5) Subject to subsections (6) and (7), a foreign company may apply in the prescribed manner and form, accompanied by the prescribed application fee, to transfer its registration to the Republic from the foreign jurisdiction in which it is registered, and thereafter exists as a company in terms of this Act as if it had been originally so incorporated and registered.

 

6) A foreign company may transfer its registration as contemplated in subsection (5) if-
a) the law of the jurisdiction in which the company is registered permits such a transfer, and the company has complied with the requirements of that law in relation to the transfer;
b) the transfer has been approved by the company's shareholders-
i) in accordance with the law of the jurisdiction in which the company is registered, if that law imposes such a requirement; or
ii) by the equivalent of a special resolution in terms of this Act, if the law of the jurisdiction in which the company is registered does not require such shareholder approval;
c) the whole or greater part of its assets and undertaking are within the Republic, other than the assets and undertaking of any subsidiary that is incorporated outside the Republic;
d) the majority of its shareholders are resident in the Republic;
e) the majority of its directors are or will be South African citizens; and
f) immediately following the transfer of registration, the company-
i) will satisfy the solvency and liquidity test; and
ii) will no longer be registered in another jurisdiction.

 

7) Despite satisfying the requirements of subsection (6), a foreign company may not transfer its registration to the Republic as contemplated in subsection (5) if-
a) the foreign company-
i) is permitted, in terms of any law or its Articles or Memorandum of Incorporation, to issue bearer shares; or
ii) has issued any bearer shares that remain issued;
b) the foreign company is in liquidation;
c) a receiver or manager has been appointed, whether by a court or otherwise, in relation to the property of the foreign company;
d) the foreign company-
i) is engaged in proceedings comparable to business rescue proceedings in terms of this Act; or
ii) is subject to an approved plan, or a court order, comparable to an approved business rescue plan in terms of this Act; or
iii) has entered into a compromise or arrangement with a creditor, and the compromise or arrangement is in force; or
e) an application has been made to a court in any jurisdiction, and not fully disposed of-
i) to put the foreign company into liquidation, to wind it up or to have it declared insolvent;
ii) for the approval of a compromise or arrangement between the foreign company and a creditor; or
iii) for the appointment of a receiver or administrator in relation to any property of the foreign company.

 

8) The Minister may make regulations-
a) prescribing forms and procedures for the consideration of applications contemplated in subsection (5);
b) for the registration of domesticated companies as contemplated in subsections (5) to (7) and for the issuing of registration certificates to such companies; and
c) establishing requirements for each domesticated company to harmonise its Memorandum of Incorporation with this Act.

 

9) Subsections (3) and (4) and section 14, each read with the changes required by the context, apply to an application in terms of subsections (5) to (7).

 

10) Upon compliance of the requirements for registration of a domesticated company as contemplated in terms of this section, the Commissioner must issue to such company a registration certificate to the effect that such registration has taken place and that it deemed that the company has been incorporated under this Act.

 

11) The registration of a domesticated company in terms of subsections (5) to (9) does not-
a) establish a new juristic person;
b) prejudice or affect the identity of the juristic person constituted by that domesticated company, or its continuity as a juristic person;
c) prejudice the rights of any person or affect the property, rights, liabilities or obligations of that juristic person; or
d) render ineffective any legal proceedings by or against that juristic person.