The Companies and Intellectual Property Commission (CIPC) is tasked with ensuring, monitoring and enforcing compliance with the Companies Act. In pursuance of this function, the Commission issued Notice 52 of 2019 dated 13 August 2018, which came into effect from 1 January 2020. The Notice announced that a new mandatory Compliance Checklist would be required to be completed and submitted by all categories of companies (but not a Close Corporation or “CC”). The Checklist had to be submitted to the Commission before the relevant company’s Annual Return could be submitted.
The Commission then issued Notice 9 of 2020, dated 3 March 2020, which has amended Notice 52. This new Notice provides that as from 5 March 2020, the Checklist will still apply to companies only if their annual financial statements are audited or independently reviewed. The Checklist still does not apply to a CC. This is now a standalone service, and must be completed by the applicable company within 30 business days after the anniversary of the company’s date of incorporation. The period for which the company declares its compliance is to be known as its “Compliance Year”, and is aligned to the anniversary date of its incorporation.
The Checklist requires that the company declare its compliance status to certain Sections, Regulations and Schedule 1 of the Act, as follows:
- Section 4: Solvency and Liquidity
- Section 15: Memorandum of Incorporation (MOI), shareholder agreements and rules
- Section 26: Access to company records
- Section 27: Financial year of company
- Section 28: Accounting records
- Section 29: Financial Statements
- Section 30: Annual Financial Statements
- Section 32: Use of company name and registration number
- Section 33: Annual Return
- Section 44: Financial assistance for subscription of securities
- Section 45: Loans or other financial assistance to directors
- Section 50: Securities Register and numbering
- Section 61: Shareholders meeting
- Section 66: Board, directors and prescribed officers
- Section 69: Ineligibility and disqualification of persons to be director or prescribed officer
- Section 70: Vacancies on board
- Section 72: Board committees
- Section 86: Mandatory appointment of company secretary
- Section 90: Appointment of auditor
- Section 92: Rotation of auditor
- Section 94: Audit committees
- Regulation 21: Registered office of the company
- Regulation 43: Social and Ethics Committee
- Schedule 1: Provisions concerning Non-Profit companies
It is ultimately the responsibility of the directors to ensure compliance and completion of the Checklist. Any person who completes it incorrectly or fraudulently can be held responsible, as follows:
- Section 215(2)(e): a person commits an offence who knowingly provides false information to the Commission
- Section 216((b): any person convicted of an offence is liable to a fine or to imprisonment for a period not exceeding 12 months, or to both a fine and imprisonment.
Should you require advice regarding the compliance checklist do not hesitate to contact us for professional advice.
DISCLAIMER: The material and information contained in this article is for general information purposes only. You should not rely upon the material or information in this article as the basis for making any business, legal or other decisions.