Non-compliant companies face potential striking-off

Non-compliant companies face potential striking-off

REGISTRAR OF COMPANIES ANNOUNCES CLEAN-UP EXERCISE WHICH COULD LEAD TO NON-COMPLIANT COMPANIES BEING STRUCK OFF THE REGISTER OF COMPANIES

At a meeting called for stakeholders held on 18 June 2013, the Registrar of Companies announced that their office is embarking on a house-keeping exercise. The filing rooms at their offices are filled with records of approximately 19,000 companies registered under the old Companies Act of 1967, many of which have not filed any statutory returns for many years. The official files maintained at the Registrar’s office for companies that may be dormant is hindering effective administration and taking up office space. Furthermore, and more importantly, not having up to date files means that the public cannot by an inspection of the public records held by the Registrar obtain current information on trading companies.
The Registrar of Companies has decided that the most effective way of carrying out the housekeeping is to request companies that were registered under the old 1967 Act to re-register under the new Companies Act of 2011. The re-registration process will be free of charge, and the Registrar will issue a certificate of re-registration for the companies that so apply. If companies fail to apply for re-registration the Registrar will start the process of striking non-compliant companies off the register, as provided for in section 87 of the new Act read with regulation 27 of the 2012 Regulations. The Registrar wants to start the re-registration process on 1 July 2013. Companies that apply for re-registration before 1 August 2013 will not be penalised for non-compliance.
While the Registrar has the legislative authority to strike a non-compliant company off the register, and to afterwards dissolve the company, it is doubtful whether the Registrar has the necessary authority to re-register companies as intended. The new Act does not have transitional provisions that require companies registered under the old Act to take positive steps to bring them into line with the new legislation. To the contrary, the new Act defines a company as a body corporate registered under the new or the old Act, and current legislation recognises all such companies as being properly incorporated.
What is clear however is that the Registrar may strike off non-compliant companies. This process starts with the Registrar writing a letter to the company, which letter will presumably be addressed to the registered address of the company according to the official records. As many non-compliant companies registered under the old Act may no longer have ties to the registered address that is reflected at the Registrar’s office, this important first notice may never reach the targeted company. As this process can ultimately lead to final dissolution of the company, it is very important that trading but non-compliant companies get their statutory compliance up to date.
Anyone that wants further information about the intended house-keeping by the Registrar, or who wants to know what a company must do to be compliant with the laws, is welcome to contact our office.

Morné Maree
Albertus Kleingeld

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