Capital rules under the Companies Act 71 of 2008, with emphasis on financial assistance

Abstract

Company law traditionally regulated capital by use of the capital maintenance principle. The Companies Act 71 of 2008 replaces the capital maintenance regime with one based on solvency and liquidity. This dissertation aims at analysing the capital rules relating to financial assistance as they are contained in the Companies Act 71 of 2008. This includes the provision of financial assistance for the purpose of or in connection with the purchase or subscription of securities in the company (section 44) and the provision of financial assistance to directors and prescribed officers of the lending company or of a related or inter-related company, or to a related or inter-related company (sections 45). The solvency and liquidity test, which is required to be applied when a company intends to provide financial assistance is analysed at the outset of the study. The work of renown authors are used for purposes of the study. The solvency and liquidity test comprises of two elements, namely solvency and liquidity. Each element of the test as well as the assets to be considered and valuation thereof is analysed. The greatest problem with regard to the test is which assets to include when the company is part of a group of companies and the lack of provision for the protection of preferential liquidation rights in all instances. Clarity is called for in these regards. Where there is a question as to valuation method of the assets, it is submitted that it is best left to be determined by the directors. The provision of financial assistance in terms of section 44 is analysed in detail. The provision of financial assistance to a person for the purpose of or in connection with the purchase of securities in a company is allowed, subject to certain conditions and requirements. Companies are also allowed to impose further conditions or requirements in the Memorandum of Incorporation. The key terms are defined and analysed, as well as the conditions or requirements for the provision of financial assistance. The scope of application of the section is cast incredibly wide due to the wide definition of “securities” and the extension of the application to financial assistance for securities in a “related or inter-related” company. The provision of financial assistance in terms of section 45 is analysed in the same manner (albeit in less detail) as section 44. The biggest problem here again is its wide scope of application due to the extension of application to provision of financial assistance to a “related or inter-related” company or director or a prescribed officer thereof.