Companies Amendment Act

1. Section 1 of the Companies Act, 1973 (hereinafter referred to as the principal Act), is hereby amended by the insertion in subsection (I), after the definition of “director”, of definition: IO “ ‘Director of Public Prosecutions’ means a Director of Public Prosecutions appointed under section 13( 1) of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998), who has jurisdiction;”. Amendment of section 91A of Act 61 of 1973, as inserted by section 1 of Act 60 of 1998 15

2. Section 91A of the principal Act is hereby amended by the insertion in subsection (4), after paragraph (c), of the following paragraph: “(cA) A court may not order the name of a member of a company contemplated in this subsection to be removed from a subregister, unless such person was a party to or had notice of a fraud or illegality as contemplated in paragraph (c).”. 20 following the 4 No. 26908 GAZE’ITE, GOVERNMENT 20 OCTOBER 2004 Act No. 20,2004 COMPANIES AMENDMENT ACT, 2004 Amendment of section 218 of Act 61 of 1973, as amended by section 17 of Act 59 of 1978 and section 24 of Act 132 of 1993

3. Section 218 of the principal Act is hereby amended- ( a ) by the substitution for the heading of the following heading: “Disqualification of directors and others”; (b) by the substitution in subsection (1) for the words preceding paragraph ( a ) of 5 the following words: “(1) Any of the following persons shall be disqualified from being appointed or acting as a director of a company or, except for a body corporate, from being concerned or taking part, directly or indirectly, in 10 the management of a company:”; (c) by the addition to paragraph (d) of subsection (1) of the following subparagraph: “(iv) any person who has, in terms of an Act of Parliament, been removed from office for not being a fit and proper person as a director or in the management or in any other position of trust of the body in question due to theft, fraud, forgery, uttering a forged document, corruption, whether in terms of the common law or not, or any other act involving dishonesty.”; (d) by the insertion after subsection (1) of the following subsection: to serve 15 20 25 “(1A) ( a ) (i) The Registrar of the Court shall, upon- (aa) the issue of a sequestration order; (bb) the issue of an order for the removal of a person from an office of trust on account of misconduct; or (cc) a conviction for an offence referred to in subsection (l)(d)(iii), send a copy of the relevant order or particulars of the conviction, as the case may be, to the Registrar. (ii) The Registrar shall notify each company which has as a director the person to whom the order or conviction relates, of the order or 30 conviction. (iii) A company notified in terms of subparagraph (ii) shall, within a period of 60 days from notification, inform its shareholders in writing of such notification. (b) The Registrar shall establish and maintain a register of the orders 35 and convictions contemplated in paragraph ( a ) and such register shall be open to inspection mutatis mutandis as if it were a register contemplated in section 113. (c) (i) If a person’s name has been entered on (b) because that person was in paragraph Registrar shall remove that person’s name from or she is rehabilitated. the register contemplated declared insolvent, the 40 the register as soon as he (ii) The Registrar shall remove a person’s name from the register authority as contemplated in subsection where a court has granted (l)(d).”; and 45 ( e ) by the substitution for subsection (2) of the following subsection: (2) Any person disqualified from being appointed or acting as a director of a company and who purports to act as a director or directly or indirectly takes part in or is concerned in the management of any company, or any director or officer of the company in question who knew or who could reasonably be expected qualification- to know of the dis- 50 - ( a ) shall be guilty of an offence; ( b ) shall be liable, jointly and severally, for all debts incurred by 55 the company for the period during which such person knew or could reasonably be expected tion.”. __ to know of the disqualifica- 6 GOVERNMENT No. 26908 GAZETTE, 20 OCTOBER 2004 Act No. 20,2004 2004 COMPANIES AMENDMENT ACT, Amendment of section 219 of Act 61 of 1973

4. Section 219 of the principal Act is hereby amended- (a) by the insertion after subsection (4) of the following subsection: “(4A) (a) The Registrar of the Court which made an order under subsection (1) shall, within seven days after the making of the order, transmit a copy of the order to the Registrar, who must notify each company which has as a director the person to whom the order relates, of the order. i (b) A company notified in terms of paragraph (a ) shall, within a period of 60 days from notification, inform its shareholders in writing of such notification. (c) The Registrar shall establish and maintain a register of the orders made under paragraph (a) and the names of the persons to whom the register shall be open to inspection mutatis orders relate, and such mutandis as if it were a register contemplated in section 113. 5 10 15 ( d ) The Registrar shall remove a person’s name from the register- (i) if an appeal against an order contemplated in subsection (1) is successful; or n’’ ; and (ii) where a court has granted leave as contemplated in subsection (b) by the substitution for subsection (5) of the following subsection: “(5) Any person who contravenes any order made under subsection (1) or any director or officer of the company in question who knew or who could reasonably be expected to know of the contravention- @ shall be guilty of an offence; (b) shall be liable, jointly and severally, for all debts incurred by the company for the period during which such person knew or could reasonably be expected to know of the contravention.”. Substitution of certain expressions in Act 61 of 1973

5. The principal Act is hereby amended- (a) by the substitution for the expression “Attorney-General”, wherever it occurs in sections 219(2)(a)(i) and (3), 400(3) and (4), 401 and 426, of the expression “Director of Public Prosecutions”; and 20 25 30 (b) by the substitution for the expression “Supreme Court”, wherever it occurs in section 1 in the definition of “Master”, and in sections 12(1) and 334(2) and 440D(5), of the expression “High Court”. (2), 18, 35 Short title

6. This Act is called the Companies Amendment Act, 2004.