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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

16. Amending Memorandum of Incorporation

 

 

1) A company’s Memorandum of Incorporation may be amended—
a) in compliance with a court order in the manner contemplated in subsection (4);
b) in the manner contemplated in section 36(3) and (4); or
c) at any other time if a special resolution to amend it—
i) is proposed by—
aa) the board of the company; or
bb) shareholders entitled to exercise at least 10% of the voting rights that may be exercised on such a resolution; and
ii) is adopted at a shareholders meeting, or in accordance with section 60, subject to subsection (3).

 

2) A company’s Memorandum of Incorporation may provide different requirements than those set out in subsection (1)(c)(i) with respect to proposals for amendments.

 

3) Despite subsection (1)(c)(ii), if a non-profit company has no voting members—
a) the board of that company may amend its Memorandum of Incorporation in the manner contemplated in subsection (1)(c)(i)(aa); and
b) the requirements of subsection (1)(c)(ii) do not apply to the company.

 

4) An amendment to a company’s Memorandum of Incorporation required by any court order—
a) must be effected by a resolution of the company’s board; and
b) does not require a special resolution as contemplated in subsection (1)(c)(ii).

 

5) An amendment contemplated in subsection (1)(c) may take the form of—
a) a new Memorandum of Incorporation in substitution for the existing Memorandum; or
b) one or more alterations to the existing Memorandum of Incorporation by—
i) changing the name of the company;
ii) deleting, altering or replacing any of its provisions;
iii) inserting any new provisions into the Memorandum of Incorporation; or
iv) making any combination of alterations contemplated in this paragraph.

 

6) If a profit company amends its Memorandum of Incorporation in such a manner that it no longer meets the criteria for its particular category of profit company, the company must also amend its name at the same time by altering the ending expression as appropriate to reflect the category of profit company into which it now falls.

 

7) Within the prescribed time after amending its Memorandum of Incorporation, a company must file a Notice of Amendment together with the prescribed fee, and—
a) the provisions of section 13(3) and (4)(a) and section 14, each read with the changes required by the context, apply to the filing of the Notice of Amendment; and
b) if the amendment to a company’s Memorandum of Incorporation—
i) has substituted a new Memorandum, as contemplated in subsection (5)(a), the provisions of section 13 (2)(b), read with the changes required by the context, apply to the filing of the Notice of Amendment; or
ii) has altered the existing Memorandum, as contemplated in subsection (5)(b)—
aa) the company must include a copy of the amendment with the Notice of Amendment; and
bb) the Commission may require the company to file a full copy of its amended Memorandum of Incorporation within a reasonable time.

 

8) If a company’s amendment to its Memorandum of Incorporation includes a change of the company’s name—
a) the provisions of section 14(2) and (3), read with the changes required by the context, apply afresh to the company; and
b) if the amended name of the company—
i) is reserved in terms of section 12 for that company, the Commission must—
aa) issue to the company an amended registration certificate; and
bb) alter the name of the company on the companies register; or
ii) is not reserved in terms of section 12 for that company, the Commission must take the steps set out in subparagraph (i), unless the name is—
aa) the registered name of another company, registered external company, close corporation or co-operative; or
bb) reserved in terms of section 12 for another person.

 

9) An amendment to a Company’s Memorandum of Incorporation takes effect—
a) in the case of an amendment that changes the name of the company, on the date set out in the amended registration certificate issued by the Commission in terms of subsection (8), read with section 14(1)(b)(iii); or
b) in any other case, on the later of-
i) the date on, and time at, which the Notice of Amendment is filed; or
ii) the date, if any, set out in the Notice of Amendment.

 

10) If an amendment to the Memorandum of Incorporation of a personal liability company has the effect of transforming that company into any other category of company, the company must give at least 10 business days advance notice of the filing of the notice of amendment to-
a) any professional or industry regulatory authority that has jurisdiction over the business activities carried on by the company; and
b) any person who-
i) in its dealings with the company, may reasonably be considered to have acted in reliance upon the joint and several liability of any of the directors for the debts and liabilities of the company; or
ii) may be adversely affected if the joint and several liability of any of the directors for the debts and liabilities of the company is terminated as a consequence of the amendment to the Memorandum of Incorporation.

 

11) A person who receives. or is entitled to receive, a notice in terms of subsection (10) may apply to a court in the prescribed manner and form for an order sufficient to protect the interests of that person.