1.1 INTRODUCTION
It’s now been over 12 years since the new companies act came into being. A lot has happened and a lot has been learned and there have been a number of court cases and a fair number of articles that explain certain aspects. We have even reached a point where a draft bill 2021 has been released but has not been fully promulgated. Certain sections have now been promulgated but not all. There are certainly many issues that need to be ironed out. The most important aspect promulgated came through the general laws amendment act to cover the situation of the Grey-listing.
Since implementation the CIPC has published guidance notes which makes a compliance check list mandatory in certain instances, but not all. This means that secretarial practitioners need to understand the full ambit of the legislation otherwise they cannot be compliant where the check list has to be done.
The act is also not the easiest document to read even though the language is easily understandable. What makes it difficult is all the cross and circular references. In the courses, I am presenting, the Basic and Advanced, I have tried to break it down in terms of what you need to know as a company secretarial practitioner in an accounting practice and if you operate as a secretarial practitioner in your own practice. If you consider yourself to be an advanced user there are a number of concepts dealt with in the basic course that you must know! What I have attempted to do is to produce a practical course and guides to controversial issues, and some issues that require some debate.
As a software developer it has always been our goal to make the routines of Company Secretarial Practice as simple and automatic as possible and I think with the current version of our software we have achieved this. I can comfortably say that we in fact are the only vendor that has a comprehensive understanding of what is required.
The new Companies Act, although fairly easy to read has a lot of nooks and crannies that require you to jump all over the place because of all the cross references, and although it may refer to other sections one needs to spend some time to go through all sections to make sure that one understands the section you are looking at. This particular set of notes or publication is brought about by the fact that being software developers we are required to understand this Act as best as we possibly can and in order to do this we have come across a number of practical issues and uncertainties in the law as well as the regulations. The purpose of this document is to explain secretarial practice and to actually point out all the problem areas and where we can suggest alternatives or work-a-rounds and of course bring you up to date.
With the advent of Beneficial Ownership there has been a steep learning curve with no real answers from the regulators and faulty CIPC systems making a serious increase in cost factors for the profession.
This particular publication is in no particular order.
If you are going to go through this document, we would really appreciate some feedback and any suggestions for improving it in the future.
During the course of any week I receive a number of questions on Company Secretarial Practice. It is clear that many Company Secretarial Practitioners that work in an accounting Practice and operate on their own do not understand many things about company law as they don’t have the theoretical background. This is possibly because they have not been taught the formal company law background that goes into Company Secretarial practice. They have been taught by their firm and the processes required by the CIPC, however with the advent of the new companies act there are aspects of law that one really needs to know. What is quite strange is that there should be partners within the firm that should be able to answer the issues, but from experience they don’t know. I would go so far as to say that you need to point out certain situations to the partners in your firm, because clearly, they do not know the consequences and the risks involved of not knowing. The question that I have for everybody is;
How can you advise your clients or process a transaction if you are not in possession of all the legal facts and understanding of the situation? There are many things that can go wrong!
Mark Silberman
February 2025