What is the registered office of a company? What company records must be kept at this office? Why is the registered office and company records so important?
The South African Companies Act 71 of 2008 (the “Act”) is quite specific about these matters.
Registered office and company records
Section 23 of the Act requires every company registered with the Companies and Intellectual Property Commission (“CIPC”) to maintain at least one office in the Republic. If it has more than one such office, it must register the address of its principal office with CIPC. See its page on company records here.
It initially files the details of its registered office and company records at the time of its Notice of Incorporation. Thereafter the details are filed on the prescribed form whenever such address changes.
The office of a company is very important, as it is the address at which any legal documents will be served on the company. Its registered office may not be a postal address. It must be a street address. Many companies use the office address of their auditor, with their permission. Alternatively it can also be the home address of one of the directors.
Companies are required to ensure that the information about its registered office and company records is up to date. Failure may result in a fine or prosecution of the company and/or its executives.
Location of Company Records
Section 25 requires that the company records must at all times be accessible at the registered office of the company. If it is not kept at or accessible from such office address, a notice must be filed with CIPC indicating the address where its is kept.
A notice of the location of the company records must be filed with the CIPC if the company records are not kept at its registered office or address. Different types of records could be maintained at different offices, eg. the securities register is kept at the office of the auditors. The details of such offices must be filed together with the description of which records are maintained at which office.
Company Records required to be maintained
In terms of Section 24 of the Act, each company registered in South Africa must keep the following:
- a copy of its Memorandum of Incorporation (MoI);
- all amendments to the MoI and any company rules since the date of Incorporation;
- a detailed record of all current directors;
- a detailed record of all past directors going back 7 years after he/she retired from the board;
- copies of all:
a) reports presented at its Annual General Meeting (AGM) for the past 7 years;
b) Annual Financial Statements (AFS) for the past 7 years since it was issued;
c) accounting records maintained in whatever format as required in terms of the Act for the current plus the previous 7 completed financial years;
d) notices and minutes of all shareholders meetings, including:
i) all resolutions adopted by them, and;
ii) any document that was made available by the company to the shareholders in relation to each resolution for the past 7 years after such resolution was adopted;
iii) copies of any written communications sent generally by the company to all holders of any class of the company’s securities for the past 7 years;
iv) minutes of all meetings and resolutions of directors, directors committees and the audit committee for the past 7 years after such meeting or adoption of a resolution;
e) a securities register in the case of a for profit company, or a members’ register in the case of a non-profit company
f) if applicable in terms of Section 85, records in regard to the appointment of the company secretary, auditor or audit committee.
ALL documents and records that a company is required to keep, must be kept either in written form. Alternatively it must be kept in a manner that allows that information to be converted into written form within a reasonable time.
These records must be maintained for seven years, or any longer period specified in any other legislation. If a company has existed for a shorter time only, it shall retain records for such shorter time.
Details of all directors
Section 24 provides that the following information must be maintained in respect of all current directors of the company:
- full name, and any former names;
- identity number or, if the person does not have an identity number, the person’s date of birth;
- nationality and passport number, if the person is not a South African;
- date of his/her most recent election or appointment as director of the company;
- name and registration number of every other company or foreign company of which the person is a director, and in the case of a foreign company, the nationality of that company; and
- any other prescribed information.
Although not legally required, it is advisable that the:
- residential, postal and home addresses of each director,
- email home telephone and mobile numbers
also be recorded.
In accordance with Section 94 the Minister may determine the minimum qualifications of members of an audit committee in order that such committee comprises persons with adequate knowledge and experience.
Should any of the above details change during the period that a person is a current director of the company, such changes need also be notified to the company and be recorded by it. It is again advisable to obtain such changes in writing and to file such notification for future reference.
Access to company records
We dealt with the issus of access to company records in a previous paper. Please study its contents in conjunction with this paper.
Essentially, any person who holds shares or a beneficial interest in the company is entitled to view and obtain copies of such documents.