Commercial And Corporate Services

You should first decide what type of company you need, for e.g. private company, public company, or not for profit company. Information required to register the specific company include preferred name/names; identity and number of director/s, number of shares, identity and number of shareholders and type of business. Alterable and non-alterable provisions required to draft a Memorandum of Incorporation (MOI) and other requirements for your business can be discussed in detail.

Not necessarily. Each company must be incorporated with a Memorandum of Incorporation (MOI) which provide for certain alterable and non-alterable provisions as required by the Companies Act. A company may have a shareholders agreement to provide for other arrangements between the shareholders and the shareholders and the company that are not necessarily regulated by the MOI. Insofar as there may be any conflict between provisions in the MOI and the Shareholders agreement if any, the provisions of the MOI will prevail.

In some instances, yes. Directors have certain fiduciary- and other duties towards the company and must adhere to standards of conduct prescribed by section 76 of the Companies Act 71/2008 (the “Companies Act”). Section 77 of the Companies Act regulates the liability of directors and prescribed officers.

Subject to certain exemptions the provisions apply to every public company and state-owned company. If you have a private company or a personal liability company or non-profit company, the provisions will only apply if specifically required by the Companies Act and regulations or if the company elects to do so in the MOI.

The Consumer Protection Act (“CPA”) applies to the supply of goods or services to a “consumer” as defined. The CPA contains many exceptions which may have the effect of limiting its application for example the CPA is not applicable if the consumer is a juristic person whose asset value or annual turnover, at the time of the transaction, equals or exceeds the threshold value of R2,000,000.00 (Two Million Rand) and does not apply to an agreement for the supply of goods or services between juristic persons.

The National Credit Act (“NCA”) applies to every credit agreement between parties dealing at arm’s length and made within, or having an effect within, the Republic of South Africa. There are exceptions to the application of the NCA which should carefully be considered to ensure compliance for example the NCA does not apply to a juristic person whose asset value or annual turnover, together with the combined asset value or annual turnover of all related juristic persons, at the time the agreement is made, equals or exceeds the threshold value of R1,000,000.00 (One Million Rand).

POPI applies to the processing of personal information:

• entered in a record by or for a responsible party by making use of automated or non- automated means, provided that when the recorded personal information is processed by non-automated means, it forms part of a filing system or is intended to form part thereof; and
• where the responsible party is domiciled in the Republic; or not domiciled in the Republic, but makes use of automated or non-automated means in the Republic, unless those means are used only to forward personal information through the Republic.

POPI must be considered with other legislation which provides conditions for the lawful processing of personal information to determine its application as legislation may limit its application in certain instances.

If you are an agent who markets or sells fruit on the local and/or export market on behalf of growers for profit/gain you may be required to register as a local fresh produce agent or export agent or both.

The board of a company may resolve to voluntarily begin business rescue proceedings if the company is “financially distressed” and there appears to be a reasonable prospect of rescuing the company. Unless a company has adopted such a resolution an affected person may apply to court at any time for an order placing a company under supervision and commencing business rescue proceedings. An “affected person” includes a shareholder or creditor of the company; any registered trade union representing employees of the company; if any of the employees of the company are not represented by a registered trade union, each of those employees or their respective representatives.