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Is a trust permitted to be appointed as a company secretary?

Chapter 3 – Question 19

Written by Dr. Adv. Leigh Hefer & Jayne Hunter-Rhys. COMPANY SECRETARY’S HANDBOOK (2021). Published by Genesis Corporate Services.

  1. Yes. A juristic person or a partnership may be appointed to hold the office of the company secretary. A juristic person includes a foreign company and a trust, irrespective of whether or not it was established within or outside the Republic of South Africa.
  2. This is subject to the following provisos:
    • 2.1 every employee of that juristic person who provides company secretarial services, or partner or employee of that partnership, who is disqualified in terms of section 69(8) to serve as a director of any particular company may not be appointed or continue to serve that company in the capacity of a company secretary, irrespective of whether that appointment was made as required by the Act or voluntarily as contemplated in section 34(2); AND
    • 2.2 at least one employee of that juristic person, or one partner or employee of that partnership:
      • 2.2.1 in the event that the company secretary is the first company secretary of a public company, a state-owned company or any other company, has been appointed by the incorporators of the company;
      • 2.2.2 in the event that the company secretary is not the first company secretary of a public company or a state-owned company, been appointed within 40 (forty) days after the incorporation of that public company or that state-owned company by the directors of that company or by a shareholders’ ordinary resolution;
      • 2.2.3 in the event that the company secretary is not the first company secretary of any company (excluding a public company and a state-owned company), but who is required to be appointed in terms of the MOI of the company, by the incorporators of that company if the requirement to appoint a company secretary applies to that company when it is incorporated, or by the directors of that company or by a shareholders’ ordinary resolution;
      • 2.2.4 has the requisite knowledge of, and experience in the relevant laws of the Republic;
      • 2.2.5 is a permanent resident of the Republic;
      • 2.2.6 remains as a permanent resident of the Republic while serving in the capacity of a company secretary of a company.
  3. It is important to note that one employee of a trust must be a permanent resident of the Republic since a juristic person which qualifies as a trust may be incorporated within or outside the borders of the Republic.
    • Source: Sections 34(2), 69(8) of Companies Act 71 of 2008

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