Abstract:
The Companies Act 71 of 2008 (“the Act”) had a long and arduous path to come
into existence. It started with the Guidelines for Corporate Law Reform published
in Notice 1183 in Government Gazette 26493 of 2004-06-23, ironically
marked “Confidential”. After various Bills, the Act was signed by the President
on 2009-04-08 but only to come into operation on a date determined by proclamation,
and from the general effective date would then repeal most of the Companies
Act 61 of 1973 (“1973 Act”) (s 225 of the Act). The Act starts a new era
in South African corporate law and will change the existing law, also the common
law, extensively. It appears that the Act follows an eclectic approach in that
it borrowed extensively from the corporate laws of other jurisdictions. This is not
per se an unacceptable modus operandi, but careful grafting into the existing
common law is necessary, so as not to create problems and uncertainty. A
situation where this may be the case, and where the confusion may be exacerbated,
is in respect of company capacity and representation.
