7.2 SAICA NOTIFICATION
“Table B of the Articles states the following:
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right to transfer shares are restricted
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all companies to hold an Annual General Meeting
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all companies must appoint an auditor
All three of these requirements have been significantly changed in the Companies Act, 2008, as per our Communiqué, dated 1 December 2011.
If you have not amended your company's MOI, the company will still require an audit for their year-end, even if they do not qualify for an audit under the Companies Act, 2008, as their MOI will still be a valid document requiring the company to have an audit.
To amend your MOI before your year-end, companies have to follow the following process:
1. Approve a special resolution removing the requirement for audit and any additional changes. Companies could utilize the following provisions, unless their articles expressly prohibit such practices:
a. The special resolution can be approved by electronic means (Section 60)
b. The notice period for a shareholders' meetings can be waived (Section 62(2A))
Attach copy of special resolution amending the MOI to Form CoR15.2
Ensure date for amendment is approved before your year-end date, (e.g. 28 February 2012) and ensure the Notice is also filed prior to the year-end date. The Notice should be sent by Registered mail or ensure the CIPC stamp on date of filing (if it is filed at a later date, the later date will be the effective date).”
As we know by now there are a number of uncertainties in regard to the MOI and in regard to the audit, but the time has come for us to make the necessary changes so that we can comply as best as is possible with the requirements of the new act. It was however unfortunate that the timing was out which caused an avalanche in the processing of special resolutions.