Publications

The new Companies Act: Inter group loans – the saga continues

There has been a lot of debate on the application of the Companies Act on inter company loans. Section 45 is the section which, inter alia, deals with inter company loans. We must admit that the title of section 45 “Loans or other financial assistance to directors” is misleading as no reference is made to inter company loans in the title.   A firm of attorneys approached the Companies and Intellectual Property commission (“CIPC”) for an non binding opinion on the application of Section 45 of the Act on inter company loans (please see the link below). Continue reading “The new Companies Act: Inter group loans – the saga continues” »

Beware!:What information and records must you keep in terms of the new Companies Act

Every Company must keep accurate and complete accounting records as required in terms of the Act. The records must be kept at, or be accessible from the registered office of the Company.   The following types of accounting records are required to be kept by all companies in terms of these regulations: Asset register; Liabilities register; Record of loans to directors, prescribed officers, shareholders, employees, and to any person related to any of them (including details of interest and repayment terms); Continue reading “Beware!:What information and records must you keep in terms of the new Companies Act” »

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”” »