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May 15, 2015

Change the registered office of your company!

As a result of recent High Court decision, it will no longer be possible for a company to use an address chosen for convenience (e.g. of its auditors) as its registered address. Company management should ensure that CIPC's records reflect the company's registered office as the address of its office. If there is more than one office, then the address of the principal office should be used.

A company can change its registered office by filing a notice of change of registered office with the CIPC. There is no filing fee payable.

The Western Cape High Court recently considered the issue of the 'residence' of a company under the new Companies Act (the '2008 Act') in the matter of Sibakhulu Construction (Pty) Ltd v Wedgewood Village Golf and Country Estate (Pty) Ltd.
The judgment highlights the changes introduced by the 2008 Act relating to a company's registered office as well as the impact of these changes on the court having jurisdiction over proceedings involving the company in certain circumstances.

Judge Binns-Ward found that under the 2008 Act:
  • a company's registered address must be the address of its office;
  • if the company has more than one office, its 'principal office' must be its registered office in accordance with section 23(3). The term 'principal office' is not defined in the 2008 Act. Looking at the 2008 Act's requirements as to what must be kept at its registered office (sections 24 and 28), the court concluded that the principal office should be the place where "the company's general administration is centered" in other words where the "administrative business of the company is principally conducted";
  • the transitional provisions in Schedule 5 of the Act do not deal with a pre-existing company's registered office and accordingly section 23(3) applies equally to such companies (a 'pre-existing company' is a company that was incorporated before 1 May 2011 under the Companies Act 1973); and
  • the place where the company's registered office is situated determines where a company resides and therefore which court has jurisdiction in proceedings affecting the status of a company, such as liquidation and business rescue proceedings. (Before the 2008 Act came into effect, it was possible for a company to reside at more than one place and one could elect to institute proceedings using, for example, either the place of its registered office or its principal office.)

May 14, 2015

A summary of customary marriages in South Africa

The Recognition of Customary Marriages Act, 120 of 1998 (RCMA), that came into operation on 15 November 2000, gives full legal recognition to customary marriages in South Africa.

The following summarises the position:
·        The law recognises your customary marriage if
o   you and your spouse are both older than 18;
o   You have both agreed to be married under customary law;
o   You negotiated and celebrated your marriage following the rules set out in customary law;
·        Even though the husband does not need pay Lobola for the marriage to be recognised by the law, payment of Lobola helps to show that you followed the traditions of customary marriage (the customs and usages traditionally observed among the indigenous African peoples of South Africa and which forms part of the culture of those people;.  
·        If you are married under customary law, you should (but don’t have to) register your marriage with the Department of Home Affairs;
·        Customary marriages can be monogamous or polygamous.  Polygamy means that a male older than 18 years of age can marry more than one wife.  If the husband has only one wife, the law will recognise the traditional law marriage whether it has been registered or not. But if the husband wants to take a second wife, he must enter into a written agreement stating what should happen to the property and how it should be shared among his wives. The husband must apply to the court to approve the written contract. The court will ensure that all the proprietary interests of all wives are protected;
·        The RCMA automatically sees all people in customary marriages as married in community of property. This means that the husband and wife share all property, money, and debts equally. If you and your partner do not want to be married in community of property, you will have to enter into an ante-nuptial contract before you get married. If you are already married and do not want to be married in community of property, you will have to apply to the High Court to change your status.
·        The RCMA recognises that the wife has equal rights and status with the husband when it comes to deciding what happens to property they own together. A customary wife is also allowed to enter into a contract without the permission of the husband;

·        If the husband has no other wives, you can get married under civil law as well as customary law. However, neither of you will be able to enter into customary marriages with anyone else while you are married under civil law.