ALTERABLE PROVISIONS OF THE COMPANIES ACT

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.

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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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