WHAT DOCUMENTS ARE REQUIRED FOR THE INCORPORATION OF A COMPANY:
The following list describes the different documents that will have to be prepared and filed with the Commission to incorporate a new company:
It is important to note that the Commission issues notices, and practice notes periodically, which must be complied with.
A form CoR 14.1, Notice of Incorporation, which is to be signed by one or more of the incorporators or the person authorised to sign on behalf of the incorporators.
The Notice of Incorporation also deals with the issue of the company name.
Three options are available: the use of the company’s registration number as a name, which will be allocated by the Commission, the use of a name which has already been reserved or registered, which is identified by stating the reference number provided by the Commission at the time of reservation or registration, or the use of one of a number of names requested in Annexure B to the form CoR 14.1, discussed below.
Form CoR 14.1 Annexure A, a recordal of the initial directors of the company, to be filed with the form CoR 14.1.
A certified copy of the identity document of each initial director, or of their passport if the director does not have a South African identity document, must be filed with the form CoR 14.1 Annexure A. Regard should be had to Practice Note 5 of 2011. A written consent to act as director of the company should be obtained for each director and retained with the company records.
Form CoR 14.1 Annexure B, a recordal of proposed names for the company which is used if no name has been reserved or registered, to be filed with the form CoR 14.1. This form should be completed and supplemented as though it were a form CoR 9.1. Even if the form is not needed by the incorporators, it must be filed blank together with form CoR 14.1.
Form CoR 14.1 Annexure C, a notice of RF provisions, to be completed with reference to the memorandum and filed with the form CoR 14.1. Even if the memorandum contains no RF provisions, Annexure C must be filed blank together with form CoR 14.1.
Form CoR 14.1 Annexure D, a notice of the company’s appointments, to be completed to show the company’s initial auditor, company secretary and audit committee members and filed with the form CoR 14.1.
A company which is required in terms of the Act and regulations or its memorandum to have its annual financial statements audited must designate an auditor in this form. A company which is not so required to have its annual financial statements audited may leave this form blank.
Companies required to appoint a company secretary and audit committee need not record these appointments in form CoR 14.1 Annexure D. Even if the form does not need to be completed, it must be filed blank together with form CoR 14.1.
The memorandum of the company, to be signed by the incorporators or the person authorised to sign on behalf of the incorporators. The memorandum may be in a form which is unique, prepared by the incorporators’ attorneys in their own style, or in the form of one of the prescribed memoranda of incorporation.
These include the form CoR 15.1A which is a short standard form for private companies which includes no scope for varying its set terms and form CoR 15.1B which is a long form for private companies, giving the incorporators the option to vary any number of the alterable provisions in the Act within the memorandum.
Forms CoR 15.1C and 15.1D may be used for non-profit companies without members, the distinction between them being that form CoR 15.1C is a short form allowing no variation of its set terms whereas form CoR 15.1D is a longer form allowing the incorporators to vary the alterable provisions of the Act within the memorandum. Form CoR 15.1E is for a non-profit company with members and is in the longer, variable form.
Form CoR 21.1, which records the registered office of the company, to be signed by one or more of the incorporators or the person authorised to sign on behalf of the incorporators and filed with the form CoR 14.1.
The form is structured so as to be notice of a change of address, but it is nonetheless required to be filed in practice. The name and registration number will have to be left blank unless a reserved or registered name is to be used for the new company.
Where dates are required for the change in registered address, the words “date of incorporation” can be inserted.
Form CoR 39, which sets out the details of the directors of the company, to be signed by one or more of the incorporators or the person authorised to sign on behalf of the incorporators and filed with the form CoR 14.1.
The form is structured so as to be a notice of a change of directors, but it is nonetheless required to be filed in practice. The name and registration number will have to be left blank unless a reserved or registered name is to be used for the new company. Where a date of appointment is required, the words “date of incorporation” can be inserted.
Where “nature of change” is required, the words “No change – first director” can be inserted.
Form CoR 44, which sets out the details of one or more of the company’s auditor, company secretary or audit committee members, to be signed by one or more of the incorporators or the person authorised to sign on behalf of the incorporators and filed with the form CoR 14.1.
The form is structured so as to be a notice of a change of auditor or company secretary, but it is nonetheless required to be filed in practice. The name and registration number will have to be left blank unless a reserved or registered name is to be used for the new company.
Where the “Date of appointment/Resignation” is to be stated, the words “Date of incorporation” can be inserted and the word “Resignation” should be crossed out. As with form CoR 14.1 Annexure D, this form need not be completed and filed where it is not compulsory for the company to appoint an auditor and it need not be completed to show a company secretary or audit committee members if the company elects not to appoint one immediately on incorporation.
A power of attorney signed by the incorporators in favour of the person who is to complete, sign and file the necessary documents, or who is to simply file the documents, must be obtained and filed together with the form CoR 14.1. In practice, this power of attorney must be accompanied by a certified copy of the identity document of the person acting pursuant to the power of attorney.
When all the abovementioned documents have been prepared, they may be filed with the Commission by the person who is properly authorised to do so.
The Commission may reject a Notice of Incorporation and the accompanying documents if they are incomplete or improperly completed in any respect. Once the Commission has accepted a Notice of Incorporation, it has no discretion: it has to register the company.
On the registration of the Notice of Incorporation the Commission must assign to the company a unique registration number, record the details of the company in the companies register maintained by the Commission and issue to the applicants a registration certificate in form CoR 14.3.
The registration certificate is conclusive evidence that all the requirements for the incorporation of the company have been complied with and the company is incorporated under the Act from the date and the time, if any, stated in the certificate.
From the date and time that the incorporation of a company is registered, as stated in its registration certificate, the company is a juristic person which exists continuously until its name is removed from the companies register in accordance with the Act.
It has all of the legal powers and capacity of an individual, except to the extent that a juristic person is incapable of exercising any such power or having any such capacity or the company’s memorandum provides otherwise.
The company is constituted in accordance with the unalterable provisions of the Act, the alterable provisions of the Act subject to any negation, restriction, limitation, qualification, extension or other alteration noted in the company’s memorandum and any further provisions of the company’s memorandum.
i. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
ii. Compiled by Jaques Bloem, with the assistance of LEXISNEXIS FORMS AND PRECEDENTS – 26 February 2019.