Article by listed Attorney: Nanika Prinsloo
In terms of the Companies Act, Act 71 of 2008, each Company must have a Memorandum of Incorporation. The Memorandum of Incorporation is the single most important document of a Company as this document will set out how the Company will be put together (shareholders, name, financial information and also the rules of the Company). The Memorandum of Incorporation is registered with CIPC (The Corporate and Intellectual Property Commission) when the Company is registered. In fact, we refer to the incorporation of a Company and not the registration of it.
If the Company wants to change anything about the Memorandum of Incorporation (also referred to as MOI), then there are certain steps that must be followed.
The board of a Company, or an individual authorised by the board, may alter the Company’s rules, or its Memorandum of Incorporation, in any manner necessary to correct a patent error in spelling, punctuation, reference, grammar or similar defect on the face of the document, by publishing a notice of the alteration, in any manner required or permitted by the Memorandum of Incorporation or the rules of the Company; and by ﬁling a notice of the alteration with CIPC.
CIPC, or a director or shareholder of a Company, may apply to the Companies Tribunal for an administrative order setting aside the notice of an alteration that is published, but only on the grounds that the alteration exceeds the authority to correct a patent error or defect.
At any time, a Company that has ﬁled its Memorandum of Incorporation (with CIPC) , may file one or more translations of it, in any official language or languages of the Republic. A translation of a company’s Memorandum of Incorporation must be a ccompanied by a sworn statement by the person who made the translation, stating that it is a true, accurate and complete translation of the Memorandum of Incorporation.
At any time after a Company has ﬁled its Memorandum of Incorporation, and subsequently ﬁled one or more alterations or amendments to it, the Company may ﬁle a consolidated revision of its Memorandum of Incorporation, as so altered or amended. CIPC also may require the Company to ﬁle a consolidated revision of its Memorandum of Incorporation, as so altered or amended.
A consolidated revision of a company’s Memorandum of Incorporation must be accompanied by a sworn statement by a director of the company; or a statement by an attorney or notary public that states that the consolidated revision is a true, accurate and complete representation of the company’s Memorandum of Incorporation, as altered and amended up to the date of the statement. (a notary public is an attorney who has written a special examination which gives him/her the authority to do certain work that only a notary can do.)
If there is a conflict between a translated version of a Company’s Memorandum of Incorporation and a consolidated version, then the translated version prevails, unless the consolidated revision has subsequently been ratiﬁed by a special resolution at a general shareholders meeting of the company. The latest version of a company’s Memorandum of Incorporation that has been endorsed by the CIPC in terms of this paragraph prevails in the case of any conﬂict between it and any other purported version of the company’s Memorandum of Incorporation.