The Companies Act 71 of 2008 (Act) took effect on 1 May 2011. All companies incorporated since then are governed by a Memorandum of Incorporation ("MOI"), which has replaced the Memorandum and Articles of Association as the constitution of a company. All companies incorporated, or which adopted a new constitution, after 1 May 2011 were and will be required to adopt a single document as their MOIs.

The Memorandum and Articles of Association of a company incorporated prior to 1 May 2011 that has not yet adopted a new constitution (pre-existing company), remain valid and effective as a constitution to the extent that they are not in conflict with the Act. Provisions in the Memorandum and Articles of Association of a pre-existing company that are in conflict with the Act are void, save for certain limited exceptions (exceptions) that apply during a transitional period ending on 30 April 2013.

It is undesirable for pre-existing companies to have to conduct an audit of the extent to which the provisions of their Memoranda and Articles of Association conform or conflict with the Act (or fall into any of the exceptions) before being able to rely thereon.

We would therefore recommend that you take steps to align your existing Memorandum and Articles of Association with the Act, and that you do so before the exceptions fall away on 30 April 2013.

Please feel free to contact us should you have any enquiries in this regard.

Contacts:

Pierre le Roux, director
Direct line: +27 21 809 6000
Email: pleroux@werksmans.com

Willie Oosthuizen, director
Direct line: +27 21 405 5100
Email: woosthuizen@werksmans.com

Herman van Niekerk, director
Direct line: +27 21 910 9000
Email: hvanniekerk@werksmans.com

Gareth Driver, director
Direct line: +27 11 535 8000
Email: gdriver@werksmans.com

Kevin Trudgeon, director
Direct line: +27 11 535 8000
Email: ktrudgeon@werksmans.com

Gerhard Johannes, director
Direct line: +27 11 535 8000
Email: gjohannes@werksmans.com