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Thread: Have you amended your MOI and articles of association yet?

  1. #1
    Full Member Cpt Chaos's Avatar
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    Question Have you amended your MOI and articles of association yet?

    Have you updated your company's Memorandum and Articles of association yet? Companies that has been in existence prior to 1 May 2011 has been given a grace period for the transition to the new Memorandum of incorporation which will be in affect as of 1 May 2013. The amendment needs to be registered at the Commission together with a special resolution.

    Companies may choose to use the standard form MOI as set out in the regulations or they can draft a unique MOI tailored to the specific needs and purposes of the company as long as it is consistent with the amended Act.

    With the standard forms set out in the regulation it is a seemingly simple process to follow. There are variety of standard forms to work with, for example a private company is entitled to use the long standard form for profit companies. This form allows the company to tailor the MOI by selecting either a default provision or a alterable provision, and if the company selects the latter, it may then expand on how it wishes to deviate from the default provision in the schedule attached to the MOI.

    As from the 1st of May 2013 the commission will start the process of issuing compliance notices to companies that have not registered their new MOI yet and will also levy a penalty fee for late registrations

    It is recommended that as the director of a pre-existing company you follow the following steps to comply with the regulations:

    First and foremost it is advisable that the company seek professional advise as soon as possible to assist then in drafting a new Memorandum and lodging it with the commission, remember to include your special resolution.

    Identify restrictive conditions that may be applicable, and register a name change for your company if there are restrictive conditions, so that it includes the suffix–'RF'.

    Your new MOI has be to consistent with the Act else it will be VOID to the extent that it contravenes or is inconsistent with the new Act, any provision in a company's MOI or regulations which is inconsistent with the Act, or contravenes it may rise grounds for civil action or a application to the courts to declare the action as void.

    As there are lots more important aspects to keep in mind when drafting a new Memorandum of Incorporation the information set out in this article is merely for informational purposes. Contact your legal representatives today before its too late.
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  2. #2
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    The deadline only refers to having the conversion done for free. There is no obligation in the Act to convert.

    Not converting does have consequences however. The main one being that pre-1/5/2011 companies are required to be audited. Many companies have ignored the requirement and merely passed a special resolution to that effect. However, there is a catch.

    The requirement in the Act to file audited annual financial statements together with the annual return was in effect suspended until 31/03/2013. That grace period is now over. The requirement applies only to companies that are required to be audited. All "old" companies are required to be audited ... The consequence now is that when you file an annual return for an "old" company it is immediately clear that audited financials must accompany it. If not, then it is as if the return has not been filed, because it is non-compliant. This requirement of course applies to cc's also, if they are required to be audited.

    Regarding the May deadline, the cost of conversion (the CIPC fee) is only R250, so that alone is no train smash.

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