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

Schedule 3 : Amendment of Laws

 

 

A: Close Corporations Act, 1984

 

Act No. and Year

Short title

Extent of amendment or repeal

1) Amendments to definitions of Close Corporations Act

Act No. 69 of 1984

Close Corporations Act, 1984

1) Amendment of section 1 of Act 69 of 1984, as amended by section 1 of Act 38 of 1986, section 1 of Act 26 of 1997, section 1 of Act 22 of 2001 and section 57 of Act 24 of 2006

 

Section 1 of the Close Corporations Act is hereby amended by—

a) the insertion before the definition of ‘‘Companies Act’’ of the following definition:

" ‘Commission’ means the Companies and Intellectual Property Commission, established by section 185 of the Companies Act;’’;

b) the substitution for the definition of ‘‘Companies Act’’ of the following definition:

‘‘ ‘Companies Act’ means the Companies Act, [1973 (Act No. 61 of 1973)] 2008;’’;

c) the substitution for the definition of ‘company’ of the following definition:

‘‘ ‘company’ [means a company as defined in] has the meaning set out in section 1 of the Companies Act;’’;

d) the substitution for the definition of ‘‘director’’ of the following definition:

‘‘ ‘director’, in relation to a company, [means a director as defined] has the meaning set out in section 1 [(1)] of the Companies Act;’’;

e) the substitution for the definition of ‘‘holding company’’ of the following definition:

‘‘ ‘holding company’, in relation to a company, [means a holding company as defined] has the meaning set out in section 1 [(1)] of the Companies Act;’’;

f) the substitution for paragraph (b) of the definition of ‘‘officer’’ of the following paragraph:

‘‘(b) a company, means [an] a prescribed officer as defined in section 1 [(1)] of the Companies Act;’’;

g) the substitution for the definition of ‘Registrar’ of the following definition:

‘‘ ‘Registrar’ means the [Registrar of Close Corporations referred to in section 4] Commissioner, appointed in terms of section 189 of the Companies Act;’’;

h) the substitution for the definition of ‘Registration Office’ of the following definition:

‘‘ ‘Registration Office’ means the [Close Corporations Registration Office referred to in section 3] office of the Commission;’’;

i) the substitution for the definition of ‘subsidiary’ of the following definition:

‘‘ ‘subsidiary’, in relation to a company, [means a subsidiary as defined in section 1(1)] has the meaning determined in accordance with section 3 of the Companies Act.’’; and

j) the substitution for the definition of ‘‘this Act’’ of the following definition:

‘‘ ‘this Act’ includes the regulations, and any regulations made in terms of the Companies Act, to the extent that they apply to this Act.’’.

2) Limitation of period to incorporate close corporations or convert companies


Amendment of section 2 of Act 69 of 1984

 

(1) Section 2 of the Close Corporations Act is hereby amended by the substitution for subsection (1) of the following subsection:



‘‘(1) [Any] At any time before section 13 of the Companies Act comes into operation, any one or more persons, not exceeding ten, who qualify for membership of a close corporation in terms of this Act, may form a close corporation and secure its incorporation by complying with the requirements of this Act in respect of the registration of its founding statement referred to in section 12.’’



Amendment of section 13 of Act 69 of 1984

(2) Section 13 of the Close Corporations Act is hereby substituted for the following section:

‘‘Registration of founding statement

 

13. If a founding statement referred to in section 12 complying with the requirements of this Act is lodged with the Registrar in the manner prescribed at any time before section 13 of the Companies Act comes into operation, and if the business to be carried on by the corporation is lawful, the Registrar shall upon payment of the prescribed fee register such statement in his or her registers and shall give notice of the registration in the prescribed manner.’’.



Repeal of section 27 of Act 69 of 1984

 

(3) Section 27 of the Close Corporations Act is hereby repealed with effect from the date on which Schedule 2 of the Companies Act comes into operation.

3) Legal status of close corporations


Amendment of section 2 of Act 69 of 1984

 

(1) Section 2 of the Close Corporations Act is hereby amended by the substitution for subsection (2) of the following subsection:

‘‘(2) A corporation formed in accordance with the provisions of this Act is on registration in terms of those provisions a juristic person and continues, subject to the provisions of this Act, to exist as a juristic person notwithstanding changes in its membership, or its conversion to a company in terms of Schedule 2 of the Companies Act, until it is [in terms of this Act] deregistered or dissolved

(a) in terms of this Act; or

(b) in terms of the Companies Act, in the case of a juristic person that has been converted to a company.’’.

4) Names of corporations


Amendment of section 19 of Act 69 of 1984, as substituted by section 5 of Act 26 of 1997

 

(1) Section 19 of the Close Corporations Act is hereby amended by the substitution of the following section:

 

‘‘Undesirable names and reservation of names

19. (1) [No founding statement containing a name for a corporation to be incorporated and no amended founding statement containing a new name for a corporation shall be registered if the name is in the opinion of the Registrar undesirable] Part A of Chapter 2 of the Companies Act, read with the changes required by the context, applies to a corporation and to an applicant for name reservation in terms of subsection (2), but—

(a) a reference in any of those provisions to a company must be regarded as a reference to a corporation for the purposes of this Act; and

(b) the application of section 11(3) of the Companies Act to a corporation is subject to the provisions of section 22(1) of this Act.

(2) Any person who intends to form a corporation or any corporation which intends to change its name [shall] may apply to the Registrar for the reservation of a name, on the prescribed form and on payment of the prescribed fee [, apply to the Registrar for the reservation of a name: Provided that a company being converted into a corporation in terms of this Act shall not be required to so reserve its name if the name remains identical].’’



Amendment of section 20 of Act 69 of 1984, as inserted by section 3 of Act 81 of 1992 and substituted by section 8 of Act 22 of 2001

 

(2) Section 20 of the Close Corporations Act is hereby amended by the substitution of the following subsection:

 

‘‘[Order to change name] Objections to names

 

20. Sections 14(2) and (3), 16(8), and 160 of the Companies Act, each read with the changes required by the context, apply to a corporation or with respect to a reserved name, or an application to reserve a name in terms of section 19(2), but a reference in any of those provisions to a company must be regarded as a reference to a corporation for the purposes of this Act.’’.



Amendment of section 22 of Act 69 of 1984, as amended by section 6 of Act 26 of 1997

 

(3) Section 22(2) and (4) of the Close Corporations Act is hereby repealed.

 



Amendment of section 23 of Act 69 of 1984, as amended by section 5 of Act 81 of 1992, section 8 of Act 26 of 1997 and section 9 of Act 22 of 2001

 

(4) The Close Corporations Act is hereby amended by the substitution for section 23 of the following section:

 

‘‘Use and publication of names

 

23. Section 32 of the Companies Act, read with the changes required by the context, applies to a corporation, but a reference in that section to a company must be regarded as a reference to a corporation for the purposes of this Act.’’.



Repeal of section 41 of Act 69 of 1984

 

(5) Section 41 of the Close Corporations Act is hereby repealed.

5) Transparency and accountability of close corporations


Amendment of section 10 of Act 69 of 1984, as amended by section 2 of Act 38 of 1986 and section 4 of Act 22 of 2001 and substituted by section 20 of Act 16 of 2003

 

(1) Section 10 of the Close Corporations Act is hereby amended by the insertion of the following subsection after subsection (2):

‘‘(3) Regulations made by the Minister in terms of section 29(4) and (5), and 30(7) of the Companies Act apply to a corporation as if those regulations had been made in terms of this Act, but any reference in those regulations to a company must be read as a reference to a corporation.’’.



Amendment of section 47 of Act 69 of 1984, as amended by section 11 of Act 26 of 1997, section 13 of Act 22 of 2001 and substituted by section 36 of Act 12 of 2004

 

(2) Section 47 of the Close Corporations Act is amended by—

(a) the repeal of subparagraphs (ii) and (iii) of paragraph (b) of subsection(1);

(b) the substitution for paragraph (c) of subsection (1) the following paragraph:

‘‘(c) any person who is [subject to any order of a court under] disqualified from being a director of a company in terms of section 69(8) to (11) of the Companies Act, subject to subsection (1B) [disqualifying him or her from being a director of a company].’’;

and

(c) the insertion of the following subsections after subsection (a):

‘‘(1A) A person who has been placed under probation by a court in terms of section 162 of the Companies Act or subsection (1C), must not participate in the management of the business of a corporation, except to the extent permitted in the order of probation.

(1B) Despite being disqualified in terms of section 69(8)(b) of the Companies Act, read with subsection (1)(c), a person may participate in the management of a corporation if 100% of the members’ interest in the corporation is held by—

(a) that person; or

(b) that person and other persons, all of whom are related to that disqualified person, and each such person has consented in writing to that disqualified person participating in the management of the corporation.

(1C) Section 162 of the Companies Act, read with the changes required by the context, applies to a corporation, but a reference in that section to—

(a) a company must be regarded as referring to a company or a corporation; or

(b) a director, must be regarded as referring to a director of a company, or a member participating in the management of a corporation.’’.



Repeal of section 55 of Act 69 of 1984

 

(3) Section 55 of the Close Corporations Act is hereby repealed.



Amendment of section 58 of Act 69 of 1984, as substituted by section 12 of Act 38 of 1986 and amended by section 4 of Act 64 of 1988

(4) Section 58 of the Close Corporations Act is hereby amended by—

(a) the substitution for subsection (1) of the following subsection:

‘‘(1) The members of a corporation shall within [nine] six months after the end of every financial year of the corporation cause annual financial statements in respect of that financial year to be made out in one of the official languages of the Republic.

(b) the insertion, of the following subsection after subsection (2),

‘‘(2A) Section 30(2)(b), and (3) to (6) of the Companies Act, read with the changes required by the context, apply to a corporation that is required by the regulations made in terms of section 30(7) of the Companies Act, to have its annual financial statements audited.



Amendment of section 62 of Act 69 of 1984, as amended by section 13 of Act 38 of 1986 and section 4 of Act 17 of 1990

 

(5) Section 62 of the Close Corporations Act is hereby amended by the insertion of the following section after section 62:

 

‘‘Application of accountability provisions of Companies Act

 

62A. (1) Section 34(2) of the Companies Act, read with the changes required by the context, apply to a corporation.

(2) Chapter 3 of the Companies Act, read with the changes required by the context—

(a) applies to a corporation that has voluntarily determined to take any action contemplated in section 34(2) of the Companies Act; and

(b) prevails over any conflicting provision of this Act, with respect to a corporation contemplated in paragraph (a).’’.

6) Rescue of financially distressed close corporations


Amendment of section 66 of Act 69 of 1984, as substituted by section 16 of Act 26 of 1997

 

(1) Section 66 of the Close Corporations Act is hereby amended by the insertion of the following subsection after subsection (1):

‘‘(1A) The provisions of Chapter 6 of the Companies Act, read with the changes required by the context, apply to a corporation, but any reference in that Chapter to—

(a) a company must be regarded as a reference to a corporation; or

(b) a shareholder of a company, or the holder of securities issued by a company, must be read as a reference to a member of a corporation.’’.

7) Dissolution of corporations


Amendment of section 66 of Act 69 of 1984, as substituted by section 16 of Act 26 of 1997

 

(1) Section 66 of the Close Corporations Act is hereby amended by the substitution for subsection (1) of the following subsection:

‘‘(1) The [provisions] laws mentioned or contemplated in item 9 of Schedule 5 of the Companies Act, [which relate to the winding-up of a company, including the regulations made thereunder, (except sections 311, 312, 313, 337, 338, 344, 345, 346(2), 347(3), 349, 364, 365(2), 367 to 370, inclusive, 377, 387, 389, 390, 395 to 399, inclusive, 400(1)(b), 401, 402, 417, 418, 419(4), 421, 423 and 424),] read with the changes required by the context, [shall] apply [mutatis mutandis and in so far as they can be applied] to the liquidation of a corporation in respect of any matter not specifically provided for in this Part or in any other provision of this Act.’’.



Amendment of section 67 of Act 69 of 1984

 

(2) Section 67 of the Close Corporations Act is hereby substituted for the following section—

 

‘‘Dissolution of corporations

 

67. (1) Part G of Chapter 2 of the Companies Act, read with the changes required by the context, applies to a solvent corporation.

(2) This Part of this Act must be administered in accordance with the laws mentioned or contemplated in item 9 of Schedule 5 of the Companies Act.’’.



Repeal of 68 of Act 69 of 1984

 

(3) Section 68 of the Close Corporations Act is hereby repealed.

8) Deregistration of corporations


Amendment of section 26 of Act 69 of 1984, as amended by section 6 of Act 38 of 1986, section 14 of Act of 22 of 2001, section 9 of Act 39 of 2002 and section 62 of Act 24 of 2001

 

(1) Section 26 of the Close Corporations Act is hereby, substituted for the following section:

 

‘‘Deregistration

 

26. Sections 81(1)(f), 81(3), 82(3) to (4), and 83 of the Companies Act, each read with the changes required by the context, apply with respect to the deregistration of a corporation, but a reference in any of those provisions to a company must be regarded as a reference to a corporation for the purposes of this Act.’’.



Repeal of section 3(1) of Act 69 of 1984

 

(2) Section 3(1) of the Close Corporations Act is hereby repealed.



Amendment of section 4 of Act 69 of 1984

 

(3) Section 4 of the Close Corporations Act is hereby amended by—

(a) the substitution for subsection (1) of the following subsection:

‘‘(1) [The Minister shall, subject to the laws governing the public service, appoint a Registrar of Close Corporations, who shall] The Commission—

(a) may exercise the powers and must perform the duties assigned to the Registrar by this Act; and

(b) [subject to the directions of the Minister, be] is responsible for the administration of the Registration Office.’’;

(b) the repeal of subsection (2); and

(c) the substitution for subsection (3) of the following subsection:

‘‘(3) The [Registrar] Commission may delegate any of the powers and entrust any of the duties [assigned to him or her by this Act] of the Registrar to any officer or employee in the [public service] Commission.’’.



Repeal of sections 11 and 16 of Act 69 of 1984

 

(4) Sections 11 and 16(3) of the Close Corporations Act are hereby repealed.



Repeal of sections 47(7), 49(5) and 58(4) of Act 69 of 1984

 

(5) Sections 47(2), 49(5) and 58(4) of the Close Corporations Act are hereby repealed.



Amendment of section 64 of Act 69 of 1984

 

(6) Section 64 of the Close Corporations Act is hereby amended by the substitution for subsection (2) of the following subsection:

‘‘(2) [Without prejudice to any other criminal liability incurred where] If any business of a corporation is carried on in any manner contemplated in subsection (1), every person who is knowingly a party to the carrying on of the business in any such manner, shall be guilty of an offence.’’.



Amendment of section 82 of Act 69 of 1984

 

(7) Section 82 of the Close Corporations Act is hereby substituted for the following section:

‘‘Application of Companies Act to enforcement of Act

 

82. Parts D, E, and F of Chapter 7, and Part A of Chapter 9 of the Companies Act, read with the changes required by the context, apply with respect to any alleged contravention of this Act or contravention of any provision of the Companies Act to the extent the provision applies to a corporation or its members.’’.

 

B: Consequential Amendments to certain other Acts listed in Schedule 4

 

No. and year

Short Title

Extent of amendment or repeal

Act No. 62 of 1977

Registration of Copyright in Cinematograph films Act, 1977

Amendment of section 1 of Act 62 of 1977

1) Section 1 of the Registration of Copyright in Cinematograph Films Act, 1977, is hereby amended by—
a) the insertion after the definition of ‘‘assignment’’ of the following definition:

‘‘ ‘Commission’ means the Companies and Intellectual Property Commission, established by section 185 of the Companies Act, 2008’’;

b) by the substitution for the definition of ‘‘legal practitioner’’ of the following definition:

‘‘ ‘legal practitioner’ means an attorney of the [Supreme] High Court of South Africa or an advocate of such Court duly instructed by an attorney or patent agent to appear before the Registrar [or his deputy];

c) by the substitution for the definition of ‘‘Registrar’’ of the following definition:

‘‘ ‘Registrar’ means the [Registrar of Copyright appointed under this Act] Commissioner appointed in terms of section 189 of the Companies Act, 2008;’’;

d) by the substitution for the definition of ‘‘registration office’’ for the following definition:

‘‘ ‘registration office’ means the [registration office for copyright in cinematograph films referred to in section 2] office of the Commission;

 

Repeal of section 2 of Act 62 of 1977

2) Section 2 of the Registration of Copyright in Cinematograph Films Act, 1977, is hereby repealed.

 

Amendment of section 3 of Act 62 of 1977

Section 3 of the Registration of Copyright in Cinematograph Films Act, 1977, is hereby amended by the substitution for subsections (1) and (2) of the following subsections:

‘‘(1) The Commission may exercise the powers and must perform the duties assigned to the registrar by this Act and is responsible for the administration of the registration office.

(2) The [Registrar] Commission may delegate any of the powers and entrust any of the duties assigned to [him] the registrar by this Act, to any officer or employee in the [public service] Commission.

Act No. 57 of 1978

Patents Act, 1978

Amendment of section 2 of Act 57 of 1978, as amended by section 1 of Act 76 of 1988, section 1 of Act 49 of 1996, section 27 of Act 38 of 1997 and section 1 of Act 20 of 2005

1) Section 2 of the Patents Act, 1993, is hereby amended by—
a) the insertion after the definition of ‘‘application in a convention country’’ of the following definition:

‘‘ ‘Commission’ means the Companies and Intellectual Property Commission, established by section 185 of the Companies Act, 2008’’;

b) by the substitution for the definition of ‘‘patent office’’ of the following definition:

‘‘ ‘patent office’ means the [patent office established in terms of section 5] office of the Commission; and

c) by the substitution for the definition of ‘‘registrar’’ of the following definition:

‘‘ ‘registrar’ means the [registrar of patents appointed under section 7] Commissioner, appointed in terms of section 189 of the Companies Act, 2008;’’;

Repeal of section 5 of Act 57 of 1978

2) Section 5 of the Patents Act, 1978, is hereby repealed.

Amendment of section 7 of Act 57 of 1978

3) Section 7 of the Patents Act, 1978, is hereby amended by—
a) the substitution for subsection (1) of the following subsection:

‘‘(1) The [Minister shall, subject to the laws governing the public service, appoint a registrar of patents, who shall] Commission—
(a) may exercise the powers and must perform the duties conferred or imposed upon the registrar by this Act; and

(b) [and who shall, subject to the directions of the Minister, have the chief control] is responsible for the administration of the patent office.

b) by the repeal of subsection (2);
c) by the substitution for subsection (3) of the following subsection:

‘‘(3) The Commission may delegate any of the powers and entrust any of the duties assigned to the registrar by this Act, to any officer or employee in the Commission.’’

Act No. 98 of 1978

Copyright Act, 1978

Amendment of section 1 of Act 98 of 1978, as amended by section 1 of Act 56 of 1980, section 1 of Act 66 of 1983, section 1 of Act 52 of 1984, section 1 of Act 13 of 1988, section 1 of Act 125 of 1992, section 50 of Act 38 of 1997 and section 1 of Act 9 of 2002

1) Section 1 of the Copyright Act, 1978, is hereby amended by the substitution for the definition of ‘‘Registrar’’ of the following definition:

‘‘ ‘Registrar’ means the [Registrar of Copyright, who shall be the person appointed as Registrar of Patents under section 7 of the Patents Act, 1978] Commissioner appointed in terms of section 189 of the Companies Act, 2008;’’

Act No. 59 of 1980

Share Blocks Control Act, 1980

Amendment of section 1 of Act 59 of 1980

1) Section 1 of the Share Blocks Control Act, 1980, is hereby amended by—
a) the substitution for the definition of ‘‘Companies Act’’ of the following definition:

‘‘ ‘Companies Act’ means the Companies Act, [1973 (Act No. 61 of 1973)] 2008;’’; and

the insertion after the definition of purchaser’ of the following definition:

‘‘ ‘Registrar’ means the Commissioner, appointed in terms of section 189 of the Companies Act;’’.

Act No. 194 of 1993

Trade Marks Act, 1993

Amendment of section 2 of Act 194 of 1993

1) Section 2 of the Trade Marks Act, 1993, is hereby amended by—
a) the insertion after the definition of ‘‘collective trade mark’’ of the following definition:

‘‘ ‘Commission’ means the Companies and Intellectual Property Commission, established by section 185 of the Companies Act, 2008’’;

b) the substitution for the definition of ‘‘registrar’’ of the following definition:

‘registrar’ means the [registrar of trade marks appointed or deemed to have been appointed under section 6] Commissioner, appointed in terms of section 189 of the Companies Act, 2008;’’; and

c) the insertion after the definition of ‘‘trade mark’’ of the following definition:

‘‘ ‘trade marks office’ means the office of the Commission;’’.

 

Repeal of section 5 of Act 194 of 1993

2) Section 5 of the Trade Marks Act, 1993, is hereby repealed.

 

Amendment of section 6 of Act 194 of 1993

3) Section 6 of the Trade Marks Act, 1993, is hereby amended by—
a) the substitution for subsection (1) of the following subsection:

‘‘(1) The Commission—

(a) may exercise the powers and must perform the duties conferred or imposed upon the registrar by this Act; and

(b) is responsible for the administration of the trade marks office.’’.

b) the repeal of subsections (2) and (4).

Act No. 195 of 1993

Designs Act, 1993

Amendment of section 1 of Act 195 of 1993 as amended by section 69 of Act 38 of 1997

1) Section 1 of the Designs Act, 1993, is hereby amended by—
a) the insertion after the definition of ‘‘article’’ of the following definition:

‘‘ ‘Commission’ means the Companies and Intellectual Property Commission, established by section 185 of the Companies Act, 2008;’’;

b) the substitution for the definition of ‘‘designs office’’ of the following definition:

‘‘ ‘designs office’ means the [designs office referred to in section 4] office of the Commission;

c) by the substitution for the definition of ‘‘registrar’’ of the following definition:

‘‘ ‘registrar’ means the [registrar of designs appointed or deemed to have been appointed under section 6] Commissioner, appointed in terms of section 189 of the Companies Act, 2008;’’;

 

Repeal of section 4 of Act 195 of 1993

2) Section 4 of the Designs Act, 1993, is hereby repealed.

 

Amendment of section 6 of Act 195 of 1993

3) Section 6 of the Designs Act, 1993 is hereby amended by—
a) the substitution for subsection (1) of the following subsection:

‘‘(1) The [Minister shall, subject to the laws governing the public service, appoint a registrar of designs, who shall] Commission—

(a) may exercise the powers and must perform the duties conferred or imposed upon the registrar by this Act; and

(b) and who shall, subject to the directions of the Minister, have the chief control] is responsible for the administration of the designs office.

b) by the repeal of subsections (2) and (3);
c) by the substitution for subsection (4) of the following subsection:

‘‘(4) The Commission may delegate any of the powers and entrust any of the duties assigned to the registrar by this Act, to any officer or employee in the Commission.’’

 

Act No. 14 of 2005

Co-operatives Act, 2005

Amendment of section 1 of Act 14 of 2005

1) Section 1 of the Co-operatives Act, 2005, is hereby amended by—
a) the insertion after the definition of ‘agricultural co-operative’ of the following definitions:

‘‘ ‘Commission’ means the Companies and Intellectual Property Commission, established by section 185 of the Companies Act;

‘Companies Act’ means the Companies Act, 2008;

b) the deletion of the definitions of ‘‘deputy registrar’’ and ‘‘Director-General’’; and
c) by the substitution for the definition of ‘‘registrar’’ of the following definition:

‘‘ ‘registrar’ means the [Registrar of Co-operatives] Commissioner, appointed in terms of section 189 of the Companies Act;’’.



Amendment of section 78 of Act 14 of 2005

1) Section 78 of the Co-operatives Act, 2008, is hereby amended by—
a) by the substitution for subsection (1) of the following subsection:

‘‘(1) The [Minister] Commission

(a) [must appoint an officer in the public service as the Registrar of Co-operatives, with the authority to] may exercise the powers and must perform the functions conferred on the registrar by or in terms of this Act;

b) the repeal of subsection (1)(b) and (c);
c) the substitution for subsection (2) of the following subsection:

‘‘(2) The [registrar] Commission may, from time to time, delegate any power conferred on [him or her] the registrar by or under this Act to any officer or employee in the [public service] Commission.