https://www.bregmans.co.za/commercial-law/
It is no longer 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 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.)
