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Is the company secretary a prescribed officer of a company?

Chapter 3 – Question 28

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

  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).
  2. 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.
  3. 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.
  4. 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.
  5. 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)(x) of Act 3 of 2011; section 66(10) of Companies Act 71 of 2008; Companies Regulation 38(1)

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