Professional Documents
Culture Documents
LWCLA2-B22
Eduvos (Pty) Ltd (formerly Pearson Institute of Higher Education) is registered with the Department of Higher Education and Training as a private higher education institution under the
Higher Education Act, 101, of 1997. Registration Certificate number: 2001/HE07/008
Week 1
What will be covered in this week’s lesson(s)?
1.2 Explain why and when the separateness of the legal person will be disregarded.
1.4 Briefly indicate the relative advantages and disadvantages of each business form.
The Law
The law determines the rights and duties of persons (legal subjects)
Legal persons are created either by specific legislation (eg UCT), general
legislation (eg. Companies Act), or conduct of an association of persons
acting together.
Legal Personality
Continued - MOI of such company states that the directors are jointly
and severally liable with the company for contractual debts
and liabilities incurred during their period of office
- Company still has legal personality
- Example: attorneys’ firms
Legal Personality Continued
• A person may reserve one or more names for use at a later time. These reserved names
may be used for newly incorporated companies or as an amendment to the name of an
existing company.
• The Commission is compelled to reserve each name that the applicant applies for, unless
the name applied for is the registered name of another company, close corporation or
cooperative, external company or has already been reserved by someone else. The
reservation continues for a period of six months from the date of the application for
reservation.
• A person for whom a name has been reserved may transfer the reservation to another
person by filing a signed notice of transfer.
Incorporation
• Registration of a company:
The registration of a company is dealt with in section 14. Upon accetptance of the notice of
incorporation, the Commission assigns a unique registration number to the company. The
Commission must enter the prescribed information relating to the company into the
companies register. This register is one that is opened by the Commission and does not refer
to a register that is kept at the relevant company.
Incorporation
• In terms of section 13, the Notice of Incorporation must be filed together with the
prescribed fee and must be accompanied by a copy of the Memorandum of Incorporation
(MOI).
• The MOI is an important document that enables significant flexibility as to the
relationship between a company and its stakeholders. It can accommodate very simle
company structures or very detailed and complex provisions - for example, to protect
minority shareholders and withhold certain powers from the board of directors.
Memorandum of Incorporation
• The MOI is defined in section 1 as the document, as amended from time to time, tha sets
out rights, duties and responsibilities of shareholders, directors and others within and in
relation to a company, and other matters as contemplated in section 15. The MOI can
therefore determine the rights, powers and duties of all stakeholders, as well as the
nature of the company - that is, whether it is a public or private company or another type
of company.
Flexibility With Memorandum of
Incorporation
The Companies Act, 208 allows a large degree of flexibility with regard to The MOI is the founding document of a company, and determines the
the content of the MOI. However, each provision of a company’s MOI must nature of the company, as well as the rights, privileges and duties of
be consistent with the provisions of the Act. Any provision that is stakeholders.
inconsistent with the provisions of the Act will be regarded as void to the
extent that it contravenes, or is inconsistent with, the Act. The
incorporators of a company are free to include any provision in the MOI
that is not covered by the Act.
Flexibility With Memorandum of Incorporation
• A company’s MOI can deal with any number of different issues including the following:
- the objects and powers of the company; the authorised shares and types of shares; any
restrictions or limitations on the powers of the company; what happens to the assets if the
company is dissolved; the composition of the board of directors; the election and removal of
directors; alternate directors; the frequency of board meetings; the committees of the
board; the personal liability of directors; the indemnification of directors; powers of
directors and powers of shareholders; restrictions on powers of directors or shareholders;
types of shareholders’ resolution; rights of shareholders, including voting rights; the disposal
by shareholders of their shares; the ability to create rules of the company; shareholders’
meetings and the procedures involved; specific audit requirements; and the amendment of
the MOI.
Rules made by the Board of Directors
Unless a company’s MOI provides otherwise, the board of directors of The board must publish a copy of the rules in the manner required in
a company may make, amend or repeal any necessary or incidental terms of the MOI (or in the manner set out in the rules themselves).
rules relating to the governance of the company in respect of matters A copy of the rules must also be filed with the Commission if this is in
that are not addressed in the Act or in the MOI. accordance with MOI or the rules themselves.
Rules made by the Board of Directors
Any rule made by the board of directors takes effect 20 business days after the rule is
published, or on the date, if any, specified in the rule, whichever date is the later. The rule is
binding on an interim basis from the time it takes effect until it is put to a vote at the next
general shareholders’ meeting of the company. The rule will become permanent once it is
ratified by an ordinary resolution at the shareholders’ meeting. Where the rule is not
accepted by the majority of the shareholders, the board of directors may not make a
substantially similar rule within the ensuing 12 months, unless it has been approved in
advance by ordinary resolution at a shareholders’ meeting.
Legal Status of the MOI and the rules developed by the
Board of Directors
A company’s MOI and any rules of the company are binding as follows:
• between a company and each shareholder;
• between or among the shareholders of the company;
• between the company and each director; and
• between the company and each prescribed officer of the company, or other person
serving the company as a member of the audit committee or as a member of a committee
of the board in the exercise of their respective functions within the company.
Ring-fenced companies
Section 11(3)(b) of the Companies Act, 2008 provides that a company’s name must be
immediately followed by the expression ‘RF’ (meaning ring-fenced), if a company’s MOI
contains:
• any restrictive conditions applicable to the company and any procedural requirements (in
addition to the normal amendment requirements as set out in section 16) that impedes
the amendment of any particular provision of the MOI; or
• if a company’s MOI contains any provision restricting or prohibiting the amendment of
any particular provision of the MOI.
Amending the Memorandum of Incorporation
Section 16(4) provides that an amendment to a company’s MOU that is required by any
court order must be effected by a resolution of the company’s board. Such an amendment
does not require a special resolution of shareholders.
Amendment of MOI when directors act in terms of
section 36(3) and (4)
Section 36(3) provides that (except to the extent that a company’s MOI provides otherwise),
the board of directors itself may:
(a) increase of decrease the number of authorised shares of any class of shares;
(b) reclassify any classified shares that have been authorised but not issued;
(c) classify any unclassified shares that have been authorised...but are not issued; or
(d) determine the preferences, rights, limitations or other terms of shares in a class
contemplated in subsection 1(d).
Amendment by way of special resolution of
shareholders
In the case of an amendment to a company’s MOI that changes the name of the company,
the amendment takes effect on the date set out in the amended registration certificate
issed by the Commission. In any other case, the amendment takes effect on the later of:
• the date on, and time at, which the notice of amendmdent is filed; or
• the date, if any, set out in the notice of amendment.
In terms of section 167(7), a company must file a notice of amendment together with the
prescribed fee with the Commission, and the Commission may require the company to file a
full copy of its amended MOI within a reasonable time.
Discussion of Case law
Airport Cold Storage v Ebrahim 2008 (6) SA 585 (SCA) - corporate veil as
mentioned above.
Shipping Corporation of India Ltd v Evdomon Corporation 1994 (1) SA 550 (A)
Discussion of Case law
Airport Cold Storage v Ebrahim 2008 (6) SA 585 (SCA) - corporate veil as
mentioned above.
The court concluded that the defendants operated the business of the corporation as if
it were their own, and without due regard for, or compliance with, the statutory and
bookkeeping requirements associated with the conduct of the corporation’s business.
The court held that when it suited them, the defendants chose to ignore the separate
juristic identity of the corporation. ‘In these circumstances, the defendants cannot now
choose to take refuge behind the corporate veil’ of the corporation in order to evade
liability for its debts.
The defendants were therefore held to be jointly and severally liable to the plaintiff for
the amounts owed to the plaintiffs at the time of liquidation.
Discussion of Case law
Shipping Corporation of India Ltd v Evdomon Corporation 1994 (1) SA 550 (A)
Corbett CJ held that ‘the separate personality of the company and the members is of
supreme significance and that deviation from this rule should only occur in exceptional
cases, especially where fraud and improper conduct are present.’
“The corporate veil may be pierced where there is proof of fraud or dishonesty or other
improper conduct in the establishment or the use of the company or the conduct of its
affairs and in this regard it may be convenient to consider whether the transactions
complained of were part of a “device”, “stratagem”, “cloak” or a “sham””.
Questions for Discussion
Discuss the principle of lifting the corporate veil and indicate the
circumstances under which this principle becomes relevant
Activity
In 2005, Pat and Tracy Morgan established NetMedia (Pty) Ltd which offered internet-based news, until it
went into liquidation when the company could no longer pay its creditors. During the winding-up of the
company, the liquidator discovered that Mr. and Mrs. Morgan, the only shareholders and directors of
NetMedia (Pty) Ltd had made a loan of R10 million to the company as a start-up cash injection. This loan
was secured by a mortgage bond over immovable property by NetMedia.
The liquidator argued that there was no real distinction in law between the Morgans and NetMedia, and
the proceeds of the sale of the company’s assets, therefore had to be utilised to settle all debts owed by
the company to its other ordinary creditors. Mr. and Mrs. Morgan believed that NetMedia’s separate legal
identity entitled them to have their secured claim against the company settled first and vowed to take
their fight to the highest court in the land.
Lisa resigned from ABC (Pty) Limited where she was employed for several years. At the time of her
employment with ABC (Pty) Limited she signed a restraint of trade agreement which stated that she may
not compete with the business of ABC (Pty) Limited for a period of 1 year after resigning. She has
subsequent to her resignation registered her own company, Lisa’s Brand (Pty) Limited, and is using the
company, of which she is the sole shareholder and director, as a front to circumvent the provisions of the
restraint of trade agreement. The directors of ABC (Pty) Limited approach you for advice. They are aware
that Lisa’s Brand (Pty) Limited is a separate legal person to Lisa, they however feel that Lisa’s Brand
(Pty) Limited should still be bound by the restraint of trade agreement.
Activity
Provide advice to ABC (Pty) Limited in respect of the legal position and whether they can still rely on the
restraint of trade agreement to prevent Lisa’s Brand (Pty) Limited from competing with them. In your
answer refer to the case that is most relevant to the facts in this question. [Note: This question does
not require you to have an understanding of the validity of restraint of trade agreements but
rather an understanding of legal personality].
Quiz True/False
1. Amy wishes to conduct a business but does not what to be responsible for the business’ debts.
The best form of business for Amy is the Sole Proprietorship.
2. The shareholders of a company are the beneficial owners of the company.
3. The shareholders of a company own the company’s assets.
4. The separate legal personality of a company may never be disregarded.
5. The legal personality of a company ends at death.
6. When a public company has fewer directors than prescribed, it ceases to exist as a separate
legal personality.
7. A trust is a separate legal person because trustees are not personally liable for the debts of
the trust.
8. A non-profit company does not need to have a specific object.
9. A domesticated company is a foreign company that has transferred its registration to South
Africa