In terms of the Companies Act, 2008 ("the Act"), all public companies are required to have a company secretary who is accountable to the Board. The appointment may be a natural person or a juristic person. A private company is not required to have a company secretary unless its Memorandum of Incorporation ("MOI") requires one.

In terms of the Listings Requirements of the JSE Limited, the directors of a company must consider and satisfy themselves, on an annual basis, on the competence, qualifications and experience of the company secretary. The company must confirm this requirement in the annual report that the directors have carried out this responsibility.

The King Report recommends that the company secretary should keep an arms-length relationship with the Board and the person so appointed should not be a director of the company. The resignation and appointment of a company secretary of a listed public company must be advised to the JSE via the company's Sponsor and advertised on the Stock Exchange News Service ("SENS"). The Companies and Intellectual Property Commission ("CIPC") must also be advised at the same time.

Duties of the Company Secretary

Whilst Section 88 of the Act prescribes seven duties of the company secretary, these are not conclusive or exhaustive. In summary, they are:

  1. Providing guidance to the directors regarding their duties, responsibilities and powers
  2. Making the directors aware of any laws relevant to or affecting the company
  3. Reporting to the board any failures by the company or its directors relating to  compliance with the Act, the MOI or rules of the company
  4. Ensuring that all minutes of shareholder meetings, board and all committee meetings of directors and the audit committee meetings are properly recorded in accordance with the Act
  5. Certifying in the annual financial statements that all the necessary notices and returns have been filed in compliance with the Act and that they are true, correct and up to date
  6. Ensuring that the company’s annual financial statements are sent to every person entitled to them
  7. As part of the filing of the annual return, the company must designate a director or an employee or other person with the responsibilities set out in Chapter 3 of the Act

 

Additional duties will include:

  • Maintenance of the company's registers:
    • Directors and Officers
    • Shareholders
    • Allotments and Share Transfers
  • Filing of the Annual Return with CIPC
  • Convening meetings of directors and shareholders:
    • drafting the agenda
    • compiling the Board pack
    • drafting and issuing notices of meetings
    • taking and drafting the minutes of the meetings
  • Maintaining the different minute books
  • Maintaining the safe custody of the company's MOI, incorporation documents and all agreements
  • Ensuring compliance with the JSE Listings Requirements
  • Liaison with the Share Registrar
  • Ensuring compliance, as closely as possible, with the King Code
  • Administration of the company's intellectual property - patents and trade marks
  • Assistance with the production of the annual report

Depending on the size and nature of the company, the company secretary may be required to perform certain administrative functions and duties such as:

  • Insurance
  • Participation in trustee meetings of the company's pension fund
  • Administration of share incentive schemes
  • Responsibility for the payroll function
  • Negotiating and the renewal of lease agreements
  • General office management

Vernon Findlay

Consultant: Corporate Statutory Services , Johannesburg

Find out more about the services of our Corporate Statutory Department here.