Companies Act, 2008 (Act No. 71 of 2008)SchedulesSchedule 5 : Transitional Arrangements4. Memorandum of Incorporation and Rules |
| (1) | Every pre-existing company— |
| (a) | incorporated in terms of section 21 of the previous Act is deemed to have amended its Memorandum of Incorporation as of the general effective date to expressly state that it is a non-profit company, and to have changed its name in so far as required to comply with section 11(3) |
| (b) | the Articles of which imposed personal liability on its directors or past directors, as contemplated in section 53(b) of the previous Act, is deemed to have amended its Memorandum of Incorporation as of the general effective date to expressly state that it is a personal liability company, and to have changed its name in so far as required to comply with section 11(3) |
| (c) | registered in terms of the previous Act, and falling within the definition of a state-owned company in terms of this Act, is deemed to have amended its Memorandum of Incorporation as of the general effective date to have changed its name in so far as required to comply with section 11(3) or |
| (d) | limited by guarantee, other than in terms of section 21 of the previous Act— |
| (i) | may file a notice within 20 business days after the general effective date electing to become a profit company, as from the general effective date, and to change its name in so far as required to comply with section 11(3) or |
| (ii) | if it fails to file a notice in terms of subparagraph (i), is deemed to have amended its Memorandum of Incorporation as of the general effective date to expressly state that it is a non-profit company, and have changed its name in so far as required to comply with section 11(3). |
| (2) | At any time within two years immediately following the general effective date, a pre-existing company may file, without charge— |
| (a) | an amendment to its Memorandum of Incorporation to bring it in harmony with this Act; and |
| (b) | if necessary, a notice of name change and copy of a special resolution contemplated in section 16, to alter its name to meet the requirements of this Act. |
| (3) | If, before the general effective date, a pre-existing company had adopted any binding provisions, under whatever style or title, comparable in purpose and effect to the rules of a company contemplated in section 15(3), those provisions continue to have the same force and effect— |
| (a) | as of the general effective date, for a period of two years, or until changed by the company; and |
| (b) | after the two year period, to the extent that they are consistent with this Act. |
| (3A) | If, before the general effective date, the shareholders of a pre-existing company had adopted any agreement between or among themselves, under whatever style or title, comparable in purpose and effect to an agreement contemplated in section 15(7), any such agreement continues to have the same force and effect- |
| (a) | as of the general effective date, for a period of two years, despite section 15(7), or until changed by the shareholders who arc parties to the agreement; and |
| (b) | after the two-year period contemplated in paragraph (a), to the extent that the agreement is consistent with this Act and the company's Memorandum of Incorporation. |
| (4) | During the period of two years immediately following the general effective date— |
| (a) | if there is a conflict between- |
| (i) | a provision of this Act, and a provision of a pre-existing company’s Memorandum of Incorporation, the latter provision prevails, except to the extent that this Schedule provides otherwise; and |
| (ii) | a binding provision contemplated in sub-item (3), and this Act, the binding provision prevails; or |
| (iii) | a provision of an agreement contemplated in sub-item (3A), and this Act or the company's Memorandum of Incorporation, the provision of the agreement prevails, except to the extent that the agreement, or the Memorandum of Incorporation, provides otherwise; and |
| (b) | despite Chapter 7, until a pre-existing company has filed an amendment contemplated in sub-item (2)(a), neither the Commission nor the Panel may issue a compliance notice to that company with respect to conduct that is— |
| (i) | inconsistent with this Act; but |
| (ii) | consistent with a provision that prevails over this Act in terms of paragraph (a). |