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

Schedule 5 : Transitional Arrangements

12. Transition of regulatory agencies

 

 

1) The person who occupied the post of chief executive officer of the Companies and Intellectual Property Registration Office immediately before the general effective date, must be regarded as having been appointed on the general effective date as the Commissioner in terms of section 189, for a term to be determined by the Minister.

 

2) A person in the employ of the Companies and Intellectual Property Registration Office or the Office of Companies and Intellectual Property Enforcement in the Department of Trade and Industry becomes an employee of the Commission on the effective date.

 

3) The transfer of departmental employees to the Commission must be effected in accordance with—
a) section 197 of the Labour Relations Act, 1995 (Act No. 66 of 1995); and
b) any collective agreement reached between the State and the trade union parties of the Departmental Chamber of the Public Service Bargaining Council before the effective date.

 

4) A person referred to in sub-items (1) and (2) remains subject to any decisions, proceedings, rulings and directions applicable to that person immediately before the effective date, and any proceedings against such a person, that were pending immediately before the effective date, must be disposed of as if this Act had not been enacted.

 

5) Any person transferred in terms of sub-items (1) to (3)—
a) remains a member of the Government Employees’ Pension Fund mentioned in section 2 of the Government Employees’ Pension Law, 1996 (Act No. 21 of 1996); and
b) is entitled to pension and retirement benefits as if that person were in service in a post classified in a division of the public service mentioned in section 8(1)(a)(i) of the Public Service Act, 1994 (Proclamation No. 103 of 1994).

 

6) As of the general effective date—
a) all movable assets of the state which were used by or which were at the disposal of the Companies and Intellectual Property Registration Office and the Office of Company and Intellectual Property Enforcement in the Department immediately before the effective date, except those assets excluded by the Minister, become the property of the Commission;
b) all contractual rights, obligations and liabilities of the Company and Intellectual Property Registration Office are vested in the Commission;
c) all financial, administrative and other records of the Company and Intellectual Property Registration Office, including all relevant documents in the possession of that office immediately before the effective date, are transferred to the Commission; and
d) the assets and liabilities of the Securities Regulation Panel established by section 440B of the Companies Act, 1973, are transferred to and are assets and liabilities, respectively, of the Panel.

 

7) Subject to sub-item (8), on the general effective date—
a) the person, if any, holding office immediately before that date, as a member, chairperson, deputy chairperson or Executive Director of the Securities Regulation Panel appointed in terms of the Companies Act, 1973, is regarded to have been appointed as a member, chairperson, deputy chairperson or Executive Director, respectively of the Panel in terms of this Act;
b) any person in the employ of the Securities Regulation Panel becomes an employee of the Panel;
c) the terms and conditions of office or employment of a person contemplated in this sub-item are identical to the terms and conditions of office or employment subsisting between that person and the Securities Regulation Panel immediately before the general effective date, subject to any further determination by the Panel in the exercise of its authority set out in sections 200(1), 200(2)(b) and 210(3); and
d) any person contemplated in this sub-item who, as an employee or office holder of the Securities Regulation Panel immediately before the general effective date, had any rights to participate in, or vested rights in terms of, any pension scheme or medical scheme, retains those rights, subject to any further determination by the Panel in the exercise of its authority set out in sections 200(1), 200(2)(b) and 210(3).

 

8) If, after the general effective date, a person referred to in sub-item (7)(c) or (d)—
a) resigns from an office in, or terminates that person’s employment by, the Panel; and
b) is subsequently appointed to an office within, or re-employed by, the Panel, sections 200(1), 200(2)(b) and 210(3) apply with respect to that person as if the person were being so appointed or employed by the Panel for the first time.

 

9) The registers of companies, external companies, reserved names, and delinquent directors, respectively, as maintained by the Companies and Intellectual Property Registration Office in terms of the previous Act are each continued as the register of companies, external companies, reserved names, and directors, respectively, required to be established by the Commission in terms of this Act.