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

Chapter 3 : Enhanced Accountability and Transparency

Part A : Application and general requirements of Chapter

84. Application of Chapter

 

 

1) This Chapter applies to—
a) every public company, subject to sections 5(6) and 94(1);
b) every company that is a state-owned company
i) except to the extent that the company has been exempted from the application of this Chapter, in terms of section 9; and
ii) subject to subsection (3); and
i) if the company is required by this Act or the regulations to have its annual financial statements audited every year:

Provided that the provisions of Parts B and D of this Chapter will not apply to any such company; or

ii) otherwise, only to the extent that the company's Memorandum of Incorporation so requires, as contemplated in section 34(2).

 

2) [Subsection 2 has been deleted by Act No. 3 of 2011]

 

3) In the case of a state-owned company—
a) if there is a conflict between a provision of this Chapter and a provision of the Public Audit Act, 2004 (Act No. 25 of 2004), the provisions of that Act prevail;
b) despite the provisions of this Chapter to the contrary, the state-owned company is not required to appoint an auditor for any financial year in respect of which the Auditor-General has elected, in terms of the Public Audit Act, 2004 (Act No. 25 of 2004), to conduct an audit of that enterprise; and
c) in any year in which the state-owned company is required by this Chapter to appoint an auditor, any requirement in terms of the Public Audit Act, 2004 (Act No. 25 of 2004), to have the appointment of the company’s auditor approved by the Auditor-General applies to that company, in addition to the relevant provisions of this Chapter.

 

4) Every company contemplated in subsection (1)(a) or (b) must appoint—
a) a person to serve as company secretary, in the manner and for the purposes set out in Part B;
b) a person to serve as auditor, in the manner and for the purposes set out in Part C; and
c) an audit committee, in the manner and for the purposes set out in Part D.

 

5) A person who is disqualified in terms of section 69(8) to serve as a director of any particular company may not be appointed or continue to serve that company in any capacity mentioned in subsection (4), irrespective of whether that appointment is made—
a) as required by this Chapter; or
b) voluntarily, as contemplated in section 34(2).

 

6) If the board of a company fails to make an appointment as required by this Part—
a) the Commission may issue a notice to that company to show cause why the Commission should not proceed to convene a shareholders meeting for the purpose of making that appointment; and
b) if the company fails to respond to a notice contemplated in paragraph (a) or, in responding, fails to satisfy the Commission that the board will make the appointment, or convene a shareholders meeting to make the appointment, within an acceptable period, the Commission may—
i) give notice to the holders of the company’s securities of a general meeting, and convene such a meeting, to make that appointment; and
ii) assess a pro-rata share of the cost of convening the general meeting to each director of the company who knowingly permitted the company to fail to make the appointment in accordance with this Part.

 

7) A company that has been given notice contemplated in subsection (6)(a), or a director who has been assessed any portion of the costs of a meeting, as contemplated in subsection (6)(b), may apply to the Companies Tribunal to set aside the notice, or the assessment, in whole or in part.