01 April 2013 | Corporate & Natural Resources
The right to information that is held by another person1 and that is required for the exercise or protection of any rights is a right that is enshrined in the Bill of Rights2. The Companies Act No. 71 of 2008 (the Act) contains provisions which aim to further this constitutional right and to promote transparency, accountability and integrity in companies. This note sets out which company information must be made available to certain persons, who those persons are in terms of the Act and the procedures for obtaining the information.
In terms of the Act, each company registered in South Africa must keep the following:
These records must be kept in writing or in a format that can be reduced to writing for a period of seven years, at the company's registered office. Companies are required to file a notice3 setting out the location at which the records described above are kept, if not at the company's registered office.
Any person who is a holder of or has a beneficial interest in securities issued by a profit company, or is a member of a non-profit company, has the right to inspect and copy4 the information in the following:
A person has a beneficial interest in securities if they have the right to receive or participate in any distribution in respect of those securities or to exercise rights attaching to those securities or to dispose of or direct the disposition of those securities or a distribution in respect of those securities.
A person who falls into this category of persons is further entitled to:
Any person who is not a holder of or does not have a beneficial interest in securities may inspect or copy:
upon payment of a fee which is yet to be determined by Regulation, but which has been capped at R100,00.
Any judgment creditor, after being informed by the relevant sheriff who is attending to execution of a company's property, that there is insufficient disposable property to satisfy a judgment debt, is entitled to demand access to the most recent AFS of that company and to receive such AFS without charge within 5 (five) business days of making the demand.
A person seeking to invoke the rights in terms of the Act must make a formal request for a company's information by delivering a Form CoR 24 to the company. In practice, the form will be completed and hand delivered to the registered office of the company. It is prudent to have the registered office acknowledge receipt of the form.
The company must then comply with the request within 14 (fourteen) days of delivery of the form, provided the request is valid in terms of the Act.
The inspection or copying of the records, as the case may be, must take place during business hours and for a reasonable period.
It is an offence for a company to:
Any person convicted of an offence in terms of the provisions relating to access to company records, is liable to a fine or imprisonment for a period not exceeding twelve months, or both a fine and imprisonment.
Should you require advice or assistance on the Companies Act, please contact any member of the commercial team at Cox Yeats: Michael Jackson (031 – 536 8512 email@example.com), Themba Zikhali (031 – 536 8529 firstname.lastname@example.org), Keren Oliver (031 - 536 8518 email@example.com), Simon Watson (031 536-8530 firstname.lastname@example.org) or Jason Goodison (031 – 536 8517 email@example.com).