WHILE large listed companies and state-owned enterprises have come to grips with most of the issues in the new Companies Act, private firms still run the risk of noncompliance in one area or another.
In its first year, the two issues that companies have been struggling with include the disclosure of director remuneration and rendering financial assistance to director or related companies. Thousands of companies have also failed to establish a social and ethics committee within the prescribed period.
The 1973 Companies Act received a complete overhaul to align it with changes in the business environment, but also to create greater flexibility for small and medium enterprises in the economy.
Freddie Kuhn, senior manager at Ernst & Young, says companies received some clarity on the issue of remuneration and when to declare remuneration with regard to directors. The issue became more contentious when it related to disclosures in another company in the same group of companies, he says.
However, the definition of a company does not include foreign companies. If a director is a full-time employee of a foreign company, but sits on the board of a South African company, the South African company only has to declare the remuneration received from the South African company and not his salary from the foreign company.
Robyn Holwill, of law firm Norton Rose, says remuneration includes fees paid to directors for services rendered to the company, salaries, bonuses, performance-related payments and expense allowances. It also includes any financial assistance given to a director, or any person related to a director, to acquire an interest in the company. This disclosure requirement applies to companies that must be audited, and all public and state-owned companies must have their annual financial statements audited.
Mr Kuhn says the Companies and Intellectual Properties Commission (CIPC) issued a nonbinding opinion that excluded private firms from having their financial statements audited. However, he says a private company had to meet the criteria set out in the act to be considered a private company. Failing that, it could become a public company.
A company is private if its memorandum of incorporation (MOI) prohibits it from offering its securities to the public, or it has restrictions on the transferability of its securities. It does not mention the word shares, as in the old act.
If private companies do not change their MOI to include shares, they will be considered public and will have to have their financial statements audited and declare the remuneration of their directors. This defeats the objectives of the act which aims to lessen the bureaucracy for companies that are not listed, or owned by the state.
It allows a transition period for a company to bring its MOI in line with the act. That period expires at the end of April next year.
“Companies that have not yet done so are advised to adopt a new MOI that is compliant with the act. With the backlogs that are currently being experienced at CIPC, steps should be taken immediately,” Ms Holwill says.
CIPC’s commissioner Astrid Ludin had been fighting a constant battle to eradicate the backlog.
Shirley Fodor, a director at Werksmans, says as with any legislation, there are teething problems, both in terms of the content and application of the provisions.
“The questions that have been most frequently encountered relate to the amendment of a company’s MOI, the perceived enhanced liability of directors, the affected transaction provisions and those relating to companies in financial distress.”
She says companies and directors are generally taking the necessary steps to re-educate themselves about provisions of the act.
Mr Khan says many companies are still grappling with the rendering of financial assistance, and if a company gets the process wrong, the board could be held liable.
Companies which could be financially exposed when involved in inter-group transactions should tread carefully.
via BusinessDay – Private firms slower to apply Companies Act.