Companies Act 2008

New Companies Act – Effective 1 May 2011 : Basic Overview

1. CC’s cannot be registered from 1 May 2011.

2. Profit Companies can be classified as:

• Private Companies – Pty (Ltd) – Not state-owned
• Personal liability Company – Incorporated / Inc – Directors / Past directors have liability
• State-Owned Company – SOC Ltd – State Owned / Owned by Municipality
• Public Company – Limited / Ltd – Not private / state-owned.

3. Name reservation is not required for incorporation. A company may register without reserving a name.

4. A company name may be predominantly in any official language and must end with the relevant English expression, being

• the word Incorporated or its abbreviation Inc., in the case of a personal liability company
• the expression Proprietary Limited or its abbreviation, (Pty) Ltd., in the case of a private company
• the word Limited or its abbreviation, Ltd., in the case of a public company

5. Accounting records and financial statements (s28 and s29)

All companies must maintain accurate and complete accounting records. The Act requires annual financial statements to:

• Include an auditor’s report, if the statements are audited
• Include a report by the directors with respect to the state of affairs, the business and profit or loss of the company
• Approved by board.
• Signed by an authorized director.
• Be presented to the first shareholders meeting after the statements have been approved by the board.

6. Audit requirement (s30)

The Act requires public companies and state owned companies to have audited financial statements. Additionally, the Regulations set out additional categories of companies. Notwithstanding the provisions of the Act and the Regulations, the provisions of the Act related to mandatory audits will also apply to any company that voluntarily choose to have audited financial statements, and provides for this choice in the company’s Memorandum of Incorporation.

7. Independent Review

All companies that are not required (either in terms of the Act, or by Regulations) to have their financial statements audited, may opt to have their annual financial statements audited voluntarily or independently. In terms of the draft Regulations, an independent review may be performed by an independent accounting professional (the person must be a member of a professional body that is a member of the International Federation of Accountants), and the following standards will apply to an independent review:

• ISRE 2400
• ISRS 4400

1. Independent compilation: For preceding year the company had less than R5m in assets and R20m turnover
2. Independent compilation entails statements compiled by an independent accounting professional, on the basis of records provided by the company, in accordance with any relevant financial reporting standards.

8. Business Rescue

Chapter 6 of the Companies Act replaces the existing regime of judicial administration with a modern business rescue regime. Additionally, it is subject to court intervention on application by any of the stakeholders.

What Is Business Rescue?

Business rescue is a focused on rehabilitating a company. Temporary supervision of the company and its management arranged. It includes the development and implementation of a plan to rescue the company by restructuring its affairs, business, property, debt and other liabilities, and equity in a manner that maximizes the likelihood of the company continuing to exist on a solvent basis.

The Act provides the Minister with the authority to designate a suitable association to regulate the profession of business rescue practitioners.