CHAPTER IV FORMATION, OBJECTS. CAPACITY, POWERS, NAMES, REGISTRATION AND INCORPORA TION OF COMPANIES, MATTERS INCIDENTAL THERETO AND DEREGISTRATION (ss 32-730)

Formation, Objects and Powers (S5 32-40) 32 Mode of forming company

Any seven or more persons or, where the company to be formed is a private company, any two or more persons associated for any lawful purpose or, where the company to be formed is to be a private company with a single member, anyone person for any lawful purpose, may form a company having a share capital or a company limited by guarantee and secure its incorporation by complying with the requirements of this Act in respect of the registration of the memorandum and articles.

33 Capacity, main object and ancillary objects of company

(1) Any company formed in pursuance of section 32 shall have the capacity determined by the main object stated in its memorandum and there shall be included in its capacity unlimited objects ancillary to the said main object except such specific ancillary objects as are expressly excluded in its memorandum.

(2) If the main business actually carried on at any time by a company referred to in subsection (1) falls within the capacity of the company by virtue only of an object ancillary to the main object stated in its memorandum, such main business shall be deemed to be the main object of that company for the purposes of the said subsection.

(3) Notwithstanding anything contained in the memorandum of any existing company, the main business which it actually carries on at the commencement of this section, shall be deemed to be its main object.

44 Change of name and effect thereof

Cases

(1) (a) Any company may by special resolution change its name to a name which is not, in the opinion of the Registrar, undesirable.

(b) Where a company changes its name, it shall at the same time, if the translated name or shortened form of the name or translated name of the company has been registered under section 43 (3), and such translated name or shortened form is no longer applicable to the name of the company as changed, apply on the prescribed form and on payment of the prescribed fee

(i) to change such translated name or shortened form of the name or translated name to a new translated name or shortened form of the name or translated name approved by the Registrar; or

(ii) to deregister such former translated name or shortened form of the name or translated name of the company.

[Para. (b) substituted by s. 8 (a) of Act 83 of 1981.]

(2) Where the name, translated name or shortened form of the name or translated name of a company is changed, the Registrar shall enter the new name, translated name or shortened form of the name or translated name in the register in place of the former name, translated name or shortened form of the name or translated name, issue a certificate of incorporation altered to meet the circumstances of the case or a certificate that the new name, translated name or shortened form of the name or translated name, has been entered in the register in place of the former name, translated name or shortened form of the name or translated name and give notice of the change of name, translated name or shortened form of the name or translated name in the Gazette.

[Sub-so (2) substituted by s. 8 (b) of Act 83 of 1981.]

(3) A change of name of a company, shall not affect any rights, debts, liabilities or obligations of the company, nor render defective any legal proceedings by or against the company, and any legal proceedings that could have been continued or commenced by or against it prior to such change of name, may, notwithstanding such change of name, be continued or commence by or against the company under its new name.

(4) Upon the production by a company of an amended certificate of incorporation or a certificate of the change of the name of such company or a certified copy thereof to any registrar or other officer charged with the maintenance of a register under any Act, and on compliance with the requirements of such registrar or officer as to the form of application, if any, and the payment of any prescribed fee, such registrar or other officer "shall make in his register all such alterations as are necessary by reason of the change of the name of the company.

(5) ......

[Sub-so (5) deleted by s. 3 of Act 111 of 1976.]

54 Form and signing of memorandum

(1) The memorandum shall be and be completed in the form prescribed.

(2) The memorandum of a public company shall be signed by not less than seven subscribers and of a private company by one or more subscribers, stating their full names, occupations and residential, business and postal addresses, and each subscriber shall sign the memorandum in the presence of at least one witness who shall attest the signature and state his residential, business and postal address.

63 Registration of memorandum and articles

Cases

(1) If a memorandum and articles complying with the requirements of this Act together with a copy thereof certified by a notary public as a true copy are lodged with the Registrar in the manner prescribed, he or she shall upon payment of the prescribed fee, register such memorandum and articles, place his or her seal on the copy and endorse theron the date of registration and the certificate provided for in section 64.

[Sub-so (1) substituted by s. 3 of Act 18 of 1990 (date of commencement not proclaimed) and by S. 7 (a) of Act 35 of2001.]

(2) In addition to the prescribed fee referred to in subsection (1) an additional fee shall be payable calculated at the rate of

(a) in the case of a company having a nominal share capital with shares having a par value, a prescribed amount for each thousand rand or part thereof;

(b) in the case of a company having shares of no par value, a prescribed amount for each thousand shares or part thereof;

(c) in the case of a company having both shares of par value and shares of no par value, the aggregate of the amounts calculated on the basis laid down in paragraphs (a) and (b) of this subsection.

[Sub-so (2) substituted by s. 4 of Act 76 of 1974, amended by s. 3 (1) of Act 29 of 1982, substituted by s. 4 of Act 31 of 1986, amended by s. 2 of Act 78 of 1989 and substituted by s. 3 of Act 39 of2002.]

(3) Any such memorandum and articles submitted for registration shall be delivered and uplifted at the Companies Registration Office personally by a subscriber thereto or by a duly authorized attorney or his clerk or by a person who was prior to the first day of January, 1953, engaged in the business of delivering and uplifting such documents.

(4) Upon the registration of the memorandum and articles of a company the Registrar shall allocate a registration number to the company concerned: Provided that the Registrar may change such registration number in order to rectify duplications of such numbers or to achieve any other objective which it is necessary or expedient to achieve for the proper maintenance of the register of companies.

[Sub-s. (4) added by s. 2 of Act 29 of 1985 and amended by s. 7 (b) of Act 35 of 2001.]

66 Members may become liable where membership reduced below minimum

If any public company other than a wholly owned subsidiary carries on business for more than six months while it has less than seven members, every person who is a member of the company during the time that it so carries on business after those six months and is cognizant of the fact that it is so carrying on business, shall be liable for the payment of the whole of the debts of the company contracted during that time and may be sued for the same without any other member being joined in the action.

190 Quorum for meetings

Unless the articles of a company provide for a greater number of members entitled to vote to constitute a quorum at meetings of a company, the quorum for such meetings shall be

(a) in the case of a public company, three members entitled to vote, personally present, or if a member is a body corporate, represented;

(b) in the case of a private company, not being a private company having one member, two members entitled to vote, present in person or by proxy or, if a member is a body corporate, represented; and

[Para. (b) substituted by s. 11 of Act 76 of 1974.]

(c) in the case of a wholly-owned subsidiary company, the representative of the holding company.

344 Circumstances in which company may be wound up by Court

Cases

A company may be wound up by the Court if

(a) the company has by special resolution resolved that it be wound up by the Court;

(b) the company commenced business before the Registrar certified that it was entitled to commence business;

(c) the company has not commenced its business within a year from its incorporation, or has suspended its business for a whole year;

(d) in the case of a public company, the number of members has been reduced below seven;

(e) seventy-five per cent of the issued share capital of the company has been lost or has become useless for the business of the company;

(j) the company is unable to pay its debts as described in section 345;

(g) in the case of an external company, that company is dissolved in the country in which it has been incorporated, or has ceased to carry on business or is carrying on business only for the purpose of winding up its affairs;

(h) it appears to the Court that it is just and equitable that the company should be wound up.