Publications

Offences in terms of the new Companies Act

A person is guilty of an offence if the person— is a party to the falsification of any accounting records of a company; with a fraudulent purpose, knowingly provided false or misleading information in any circumstances in which the Act requires the person to provide information or give notice to another person; was knowingly a party to an act or omission by a company calculated to defraud a creditor or employee of the company, or a holder of the company’s securities, or with another fraudulent purpose; or is a party to the preparation, approval, dissemination or publication of a prospectus or a written statement that contains an “untrue statement”. Continue reading “Offences in terms of the new Companies Act” »

The future of “Shareholders Agreements” in terms of the New Companies Act 2008

Introduction The general effective date of the Companies Act, 2008 (“the New Act”) was 01 May 2011. The introduction of the New Act drastically changes the the company law landscape in South Africa. Scope of Publication The scope of this publication is to consider the effect that New Act will have on an pre-existing private company’s articles and memorandum of association, any rules (which includes any binding provisions relating to the governance of the company) and any shareholders agreement pertaining to such company. Continue reading “The future of “Shareholders Agreements” in terms of the New Companies Act 2008” »

Compliance with the formalities regarding Inter company loans and the Companies Act 2008

With regards to the new Companies Act which came into force on the 1st of May 2011, there is a lot of heated debat and different views on the compliance with the Companies Act regarding inter [...]

Random Questions regarding the Consumer Protection Act

When may you be held liable for damages caused by goods? The producer or importer, distributor or retailer of any goods is liable for any harm caused wholly or partly as a consequence of: supplying any unsafe goods; a product failure, defect or hazard in any goods; or inadequate instructions or warnings provided to the consumer pertaining to any hazard arising from or associated with the use of any goods, irrespective of whether the harm resulted from any negligence on the part of the producer, importer, distributor or retailer, as the case may be.  Liability of a particular person in terms of the aforementioned does not arise if: Continue reading “Random Questions regarding the Consumer Protection Act” »

Business Rescue

 DEFINITION Business rescue (“BR”) means proceedings to facilitate the rehabilitation of a company that is “financially distressed” by providing for certain procedures.   CONCEPT   The concept of business rescue is designed to provide a mechanism to a company that has financial difficulties  but has not reached the stage of insolvency.  That is the “financially distressed” company. Financially distressed in reference to a particular company, at a particular time-means that; Continue reading “Business Rescue” »

Specific matters regarding the Consumer Protection Act

Cancellation of advance orders?   A consumer has the right to cancel an advance order however a supplier may require a reasonable deposit and charge a reasonable fee should the consumer cancel an advance order.   In determining a reasonable fee the following must be considered: the nature of the goods or service; the notice period of cancellation;  the possibility to obtain another consumer; and the general industry practice. Continue reading “Specific matters regarding the Consumer Protection Act” »

Accounting obligations in terms of the Companies Act 2008

All companies, large and small must prepare annual financial statements. All companies must maintain accurate accounting records. All companies must have a financial year. It is an offence to falsify or fail to keep proper records or to publish false financial statements. All financial statements given to another person must bear a disclosure statement. The Commission will direct private companies to prepare audited Financial Statement if a certain threshold is attained. All companies must file annual returns with the Commission. A company must prepare annual financial statements within 6 (six) months after the end of its financial year end.  Continue reading “Accounting obligations in terms of the Companies Act 2008” »

Obligations in terms of the Companies Act when “Financially distressed”

The new Companies Act of 2008 (“the Act”) entails fewer criminal offences, but there is a greater risk of personal liability arising from actions which contravene the Memorandum of Incorporation (MOI) of a company or the provisions of the Act. The Act further states that a company must not carry on its business recklessly, with gross negligence, or with intent to defraud anyone. Continue reading “Obligations in terms of the Companies Act when “Financially distressed”” »

New Companies Act effective from 1 May 2011

 A new Act was born. The new Companies Act is in full force and effect. The Companies and Intellectual Property Commission (“CIPC”)is also in operation today from 08h00, check out CIPC’s website for information and detail. The website was not in operation on 1 May and with all the public holidays there was news as to whether the CIPC would be, as promised, in operation on 3 May.  The office hours are: Continue reading “New Companies Act effective from 1 May 2011” »

Franchise or “similar” agreements and the Consumer Protection Act 68 of 2008

In terms of the Consumer Protection Act 68 of 2008, a franchise agreement is defined as: “An agreement between two parties, being the franchisor and the franchisee, respectively-  a)    in which, for consideration paid, or to be paid, by the franchisee to the franchisor, the franchisor grants the franchisee the right to carry on business within all or a specific part of the Republic under a system or marketing plan substantially determined or controlled by the franchisor or an associate of the franchisor; Continue reading “Franchise or “similar” agreements and the Consumer Protection Act 68 of 2008” »