+27 31 765 4989 / 5911 / 2491
+27 31 765 4989 / 5911 / 2491
Traditionally, the Company Secretary was the chief administrative officer of a company and matters such as finance, tax, insurance and human resources fell under his/her mandate.
In the increasingly regulated environment in which we operate in South Africa, it is becoming difficult for a Company Secretary to keep abreast of all the changes and to have sufficient knowledge of all these disciplines to be able to carry out his duties effectively in the role of general overall administrator.
Over the years each of the disciplines mentioned above has become more specialised and in larger companies to-day there is usually a separate finance department run by a Chartered Accountant who is often the financial director of the company. This department might also manage the company’s tax affairs.
There might also be a separate legal department and a human resources department. So the role of Company secretary, whilst being given increasing weight by legislation, might not in itself be seen as a full-time occupation and might be combined with another function, such as the legal or compliance function, or it could be outsourced.
As can be seen from the extract from the Companies Act below, the role of the Company Secretary is at the same time subservient to the Board of directors to who it reports, but at the same time is tasked with the responsibility of ensuring that directors are aware of their responsibilities and duties and comply with the Act and the Memorandum of Incorporation of the company to whose Board they are appointed. Tact and diplomacy are useful attributes.
A Company Secretary is defined in the Companies Act No. 71 of 2008 simply as “an officer of the company”, which does not reveal a lot. Until 1999 the appointment of a Company Secretary was a matter of choice but the Companies Amendment Act, No. 37 of 1999, which became effective on 30 June 1999, made it mandatory for all public companies (excluding certain other companies that were at the time deemed to be “public” companies) to appoint a Company Secretary.
When the new Companies Act, No. 71 of 2008 came into effect on 1 May 2011 it made it mandatory for every public company and state owned company to appoint a Company Secretary.
The requirements for a Company Secretary are prescribed by Section 86(2) of the Companies Act, which states that “Every company secretary ….. must –
(a) have the requisite knowledge of, or experience in, relevant laws; and
(b) be a permanent resident of the Republic, and remain so while serving in that capacity.
Section 87 provides that a juristic person or partnership may be appointed company secretary provided that –
(a) Every employee of that juristic person who provides company secretarial services, or partner and employee of that partnership, as the case may be, satisfies the requirements contemplated in section 84(5) (ie has not been disqualified from acting as a director); and
(b) At least one employee of that juristic person, or one partner or employee of that partnership, as the case may be, satisfies the requirements contemplated in section 86.
The statutory duties of a company secretary as prescribed by Section 88 of the Act are as follows:
(1) A company’s secretary is accountable to the company’s board.
(2) A company secretary’s duties include, but are not restricted to –
(a) providing the directors of the company collectively and individually with guidance as to their duties, responsibilities and powers;
(b) making directors aware of any law relevant to or affecting the company;
(c) reporting to the company’s board any failure on the part of the company or a director to comply with the Memorandum of Incorporation or rules of the company or this Act;
(d) ensuring that minutes of all shareholders’ meetings, board meetings and the meetings of any committees of the directors, or of the company’s audit committee, are properly recorded in accordance with this Act;
(e) certifying in the company’s annual financial statements whether the company has filed required returns and notices in terms of this Act, and whether all such returns and notices appear to be true, correct and up to date;
(f) ensuring that a copy of the company’s annual financial statements is sent, in accordance with this Act, to every person who is entitled to it, and
(g) carrying out the functions of a person designated in terms of section 33(3) (ie filing of the annual return).
For those interested in learning more about the role and about qualifying to become a Company Secretary should contact their local branch of the Southern African Institute of Chartered Secretaries and Administrators (Chartered Secretaries South Africa) and ask them about their four year diploma course and qualifying Board examinations. No one should consider taking on the role of Company Secretary without being full conversant with what the role entails, the duties required of the Company Secretary and how to perform them. It is a very responsible role and the CSSA course is the only one specifically designed for this purpose.
In our capacity as professional company secretaries we also offer to mentor inexperienced Company Secretaries to give them support and confidence in performing their duties.
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