FREQUENTLY ASKED QUESTIONS: TRUST COMPLIANCE

What is a shareholder’s agreement?

This is a contract between the shareholders stating what they may / or may not do with the shares or money or assets of the company and whether they may try to interfere with the running of the company

What is an MOI?

The most important document governing a company is the Memorandum of Incorporation (MOI). The MOI sets out the rules governing the conduct of the company, as specified by its owners. The Companies Act imposes certain specific requirements on the content of a Memorandum of Incorporation, as necessary to protect the interests of shareholders in the company, and provides for a number of default company rules / alterable provisions, which companies may accept or alter as they wish as long as it is in line with the Companies Act.


What is a public officer?

This person is the most onerous person in a company from a legal stance

The Public Officer is responsible to keep all taxes submitted and paid up to date.

This is normally the SEO or financial director who will possibly be sued along with other offenders in the company.

Ignorance of the law will not exonerate you.

The PO may outsource the responsibilities, but the buck still stops with the PO

As a rule of thumb, the PO should also control the bank account


What is the difference between?

What is a director of a company?

A director is someone elected or appointed to manage a company's business and affairs. Every registered company must have at least one director. Who your directors are, and key information about them, is recorded on the Companies Register?

What is a company secretary?

A company secretary is defined in the Act simply as “an officer of the company”. Company secretaries oversee the efficient administration and compliance of a company. Company secretaries are the primary source of advice on the conduct of the business.

The role and responsibility of the company secretary is outlined in Section 88(1) - (2) of the Act and can be summarized as follows - noting that this is not an exhaustive list:

  • Providing the directors of the company collectively and individually with guidance as to their duties, responsibilities and powers

  • Making the directors aware of any law relevant to or affecting the company Reporting to the company’s board any failure on the part of the company or a director to comply with the Memorandum of Incorporation or rules of the company or the Act

  • Ensuring that minutes of all shareholders' meetings, board meetings and the meetings of any committees of the directors, or of the company’s audit committee, are properly recorded in accordance with the Act.

  • Certifying in the company’s annual financial statements whether the company has filed required returns and notice in terms of the Act, and whether all such returns and notices appear to be true, correct and up to date

  • Ensuring that a copy of the company’s annual financial statements is sent, in accordance with the Act, to every person which is entitled to it

  • Carrying out the functions of a person designated in terms of Section 33(3) of the Act.

What is a shareholder in a company?

A shareholder, also referred to as a stockholder, is a person, company, or institution that owns at least one share of a company's stock, which is known as equity. Because shareholders are essentially owners in a company, they reap the benefits of a business' success


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