ALTERABLE PROVISIONS OF THE COMPANIES ACT
Set out in terms of s 15(2)(a)(ii), of the Companies Act, 2008 (“the Act”), the Memorandum of Incorporation (“MOI”) of a company may include any provision altering the effect of any alterable provision in the Act. An alterable provision is a provision in the Act in which it is expressly contemplated that its effect on a company may be negated, restricted, limited, qualified, extended or otherwise altered in substance or effect by the company’s MOI. Set out below is a table of the those provisions expressly stated in the Act as being alterable.
Note: that the table below sets out those stated powers, provisions or positions in the Act which are expressly alterable and does not set out the permissive provisions in the Act which record that something may be regulated in the MOI (for example, the provision that the MOI may set out different classes in shares).
BELOW ARE THE PROVISIONS:
| SECTION | WHAT IS ALTERABLE |
| 4(2)(c) | An aspect of the method of measuring liabilities when applying the solvency and liquidity test |
| 15(3) | The board’s power to make incidental rules relating to the governance of the company |
| 16(2) | Who may propose a special resolution to amend the MOI |
| 19(1)(b)(ii) | The powers and capacity of the company |
| 19(2) | The potential liability of the incorporators, shareholders and directors only by reason of the occupation of those positions |
| 26(3) | Rights of access to company information |
| 30(2)(b)(ii)(aa) | Freedom from the requirement to have the annual financial statements audited |
| 34(2) | Freedom from extended accountability requirements |
| 36(3) | The board’s power to alter the authorised share capital |
| 37(2) | General voting rights associated with shares |
| 39(1) | Non-application of pre-emptive rights of shareholders to subscribe for shares to be issued by the company which applies automatically to private companies, alterable to apply to public companies and state-owned companies |
| 39(3) and (4) | The extent and operation of the pre-emptive right to subscribe for shares to be issued by the company |
| 43(2)(a) | The board’s power to issue debt instruments |
| 43(3) | The board’s power to issue debt instruments with special privileges |
| 44(2) | The right of the board to authorise the company to provide financial assistance to buy or subscribe for shares in the company or a related or inter-related company |
| 45(2) | The right of the board to authorise the company to provide financial assistance to a director, prescribed officer, related company, inter-related company, related close corporation, inter-related close corporation, a director or prescribed officer of a related or inter-related company, a member of a related or inter-related close corporation or any person related to such persons |
| 47(1) | The board’s power to issue capitalisation shares |
| 56(1) | The right to have shares registered in the name of one person for the beneficial interest of another person |
| 57(2)(a) | The right of a sole shareholder to exercise voting rights without notice or compliance with internal formalities |
| 57(3)(a) | The right of a sole director to exercise powers without notice or compliance with internal formalities |
| 57(4) | The waiver of the need to hold separate meetings where directors and shareholders are the same |
| 58(3) | Rights and obligations in respect of appointing proxies |
| 58(7) | The right of a proxy to vote without direction from the shareholder |
| 59(3) | The default record date if not determined by the board |
| 61(4) | The percentage of voting rights required for valid requisition for a shareholders meeting |
| 61(9) | The right of the board to determine the location of a shareholder meeting as anywhere in the world |
| 62(2) | Time periods for notice of shareholders meetings |
| 64(2) | Quorum requirements for shareholders meetings |
| 64(6) | Time periods to wait at a shareholders meeting where a quorum is not present before the meeting is automatically postponed, as well as the period of the postponement |
| 64(9) | The right to continue a shareholders meeting even if the shareholders forming a quorum do not all remain in attendance |
| 64(13) | The maximum period for the adjournment of shareholders meetings |
| 65(8) | The percentage voting rights required for the approval of an ordinary resolution |
| 65(10) | The percentage voting rights required for the approval of a special resolution |
| 65(12) | Items for which a special resolution is required |
| 66(1) | The general powers and authority of the board |
| 66(3) | The minimum number of directors for a company |
| 66(5)(b)(i) | Powers of an ex officio director |
| 66(8) | The right of the company to remunerate directors for services rendered as directors |
| 66(12) | The right to appoint a director to more than one committee |
| 68(2) | The method of electing directors |
| 68(3) | The right of the board to fill vacancies on the board |
| 69(6) | Grounds of ineligibility or disqualification or minimum qualifications of directors |
| 72(1) | The power of the board to appoint board committees and delegate authority to such committees |
| 72(2) | The permissible composition of board committees |
| 73(2) | The number or percentage of board members authorised to requisition a board meeting |
| 73(3) | The right to conduct or participate in board meetings by electronic communication |
| 73(5)(a) | The non-application of the requirement for proper notice of a board meeting |
| 73(5)(b) | The requirement that the majority of the directors be present at a board meeting to form a quorum |
| 73(5)(c) | The provision that each director has one vote |
| 73(5)(d) | The requirement that a majority of the votes is sufficient to approve a resolution of the board |
| 73(5)(e) | The requirement that in the case of a tied vote, the chair has a deciding vote if the chair did not initially have or cast a vote |
| 74(1) | The right to vote on issues without a board meeting, by way of a written resolution |
| 78(4) and 78(5) | The power of the company to advance expenses to a director, prescribed officer, board committee member or audit committee member and indemnify them against expenses and liabilities |
| 78(7) | The power of the company to purchase insurance in respect of expenses and indemnities to be advanced or given or already advanced or given |
| 118(1)(c)(ii) | General non-application of Parts B and C of Chapter 5 and takeover regulations to a private company |
| Schedule 1, item 1(8) | Voting rights of members of non-profit companies |
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