Is the company secretary a prescribed officer of a company?
Written by Dr. Adv. Leigh Hefer & Jayne Hunter-Rhys. COMPANY SECRETARY’S HANDBOOK (2021). Published by Genesis Corporate Services.
A prescribed officer is defined in section 1 of the Act as a person who within a company performs any function which has been designated by the Minister in terms of section 66(10).
Section 66(10) provides that the Minister may make regulations designating any specific function(s) within a company to constitute a prescribed office for the purposes.
The Minister has therefore determined in companies regulation 38(1) that despite not being a director of a particular company, a person is a prescribed officer of the company for all purposes if that person:
3.1 exercises general executive control over and management of the whole, or a significant portion, of the business and activities of the company; OR
3.2 regularly participates to a material degree in the exercise of general executive control over and management of the whole, or a significant portion, of the business and activities of the company.
Regulation 38 applies to this person irrespective of any particular title given by the company to:
4.1 an office held by the person in the company; OR
4.2 a function performed by the person for the company.
Although the Act does not define a company secretary as a prescribed officer of a company, a company secretary may fall under the definition of a prescribed officer and the specific functions of the company secretary will be ultimately the determination of this issue.
Source: Section 1 of Companies Act 71 of 2008 as substituted by section 1(1)( of Act 3 of 2011; section 66(10) of Companies Act 71 of 2008; Companies Regulation 38(1)
A prescribed officer is defined in section 1 of the Act as a person who within a company performs any function which has been designated by the Minister in terms of section 66(10).
Section 66(10) provides that the Minister may make regulations designating any specific function(s) within a company to constitute a prescribed office for the purposes.
The Minister has therefore determined in companies regulation 38(1) that despite not being a director of a particular company, a person is a prescribed officer of the company for all purposes if that person:
3.1 exercises general executive control over and management of the whole, or a significant portion, of the business and activities of the company; OR
3.2 regularly participates to a material degree in the exercise of general executive control over and management of the whole, or a significant portion, of the business and activities of the company.
Regulation 38 applies to this person irrespective of any particular title given by the company to:
4.1 an office held by the person in the company; OR
4.2 a function performed by the person for the company.
Although the Act does not define a company secretary as a prescribed officer of a company, a company secretary may fall under the definition of a prescribed officer and the specific functions of the company secretary will be ultimately the determination of this issue.
Source: Section 1 of Companies Act 71 of 2008 as substituted by section 1(1)( of Act 3 of 2011; section 66(10) of Companies Act 71 of 2008; Companies Regulation 38(1)
Updated on: 23/05/2023
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