It is becoming more apparent that many foreign owned companies are keeping their company statutory records as well as their accounting records overseas, and they are therefore not accessible within the Republic of South Africa, as required by Section 25 of the Companies Act No 71 of 2008.
Section 24(1) of the Act states that records must be kept:
- In written form, or other form or manner that allows that information to be converted into written form within a reasonable time; and
- For a period of 7 years, or longer period of time specified in another act or regulation.
The records and times referred to in Section 24(1) are as follows:
- A copy of the Memorandum of Incorporation together with copies of any amendments and/or alterations made thereto.
- A record of directors, which must include the full name and any former names, identity number or date of birth, nationality of the director and passport number if not South African, occupation, date of the most recent appointment, name and registration numbers of every company of which the person is a director, and any other prescribed information. With regard to past directors, the information must be kept for 7 years after resignation/retirement.
- Copies of all reports presented at the Annual General Meetings for a period of 7 years after the date of the meeting.
- Copies of all Annual Financial Statements for 7 years after they were issued.
- Copies of all accounting records for a period of 7 completed years after the current financial year-end.
- Notices, supporting documents and minutes of all shareholders meetings for a period of 7 years after the date each resolution was adopted.
- Copies of all written communications sent to all classes of shareholders for a period of 7 years after date of issue.
- Minutes of all meetings of directors, directors’ committees or the audit committee, for a period of 7 years after such meeting or date the resolution was passed.
- Securities Register.
It must be noted that if any of the abovementioned documents or records are not kept at the registered office of the company, then a form CoR22 – Notice of Location of Company Records – must be filed advising the Commissioner of Companies and Intellectual Property Commission where these records can be found in the Republic of South Africa.
Likewise, where the accounting records are maintained at premises that are not the registered office, a form CoR22 should also be filed advising the Commissioner of Companies & Intellectual Property Commission where these records can be found, which should also be in the Republic of South Africa.
Failure to adhere to any provision of the Act, a director may be held liable in accordance with the principles of common law relating to delict for any loss, damages or costs sustained by the company as a consequence of any breach by the director.
The Commission or the Executive Director of the Panel may issue a compliance notice to any person whom the Commission or Executive Director may on reasonable grounds believe that they have contravened the Act. This compliance notice may require the person to cease, correct or reverse any action in contravention of this Act, and to take any action required by this Act.
Corporate Statutory Auditor, Johannesburg