BOARDS AND DIRECTORS RESPONSIBILITIES AND RISK THE IMPACT OF THE NEW COMPANIES ACT AND BUSINESS LEGISLATION PRESENTED BY DR JOHN W HENDRIKSE - PowerPoint PPT Presentation


Title: BOARDS AND DIRECTORS RESPONSIBILITIES AND RISK THE IMPACT OF THE NEW COMPANIES ACT AND BUSINESS LEGISLATION PRESENTED BY DR JOHN W HENDRIKSE


1
BOARDS AND DIRECTORSRESPONSIBILITIES AND
RISKTHE IMPACT OF THE NEW COMPANIES ACTAND
BUSINESS LEGISLATIONPRESENTED BYDR JOHN W
HENDRIKSE
  • Online solutions to grow your business

2
BOARDS AND DIRECTORSRESPONSIBILITIES AND RISK
  • CORPORATE REFORM TIMELINES
  • BOARD MISSION
  • GOVERNANCE FRAMEWORK
  • BOARD STRUCTURE
  • BOARD RESPONSIBILITIES
  • DIRECTORS RESPONSIBILITIES
  • LIABILITIES OF DIRECTORS
  • COMPETITION AMENDMENT ACT
  • CONSUMER PROTECTION ACT
  • CAVEAT VENDITOR

Online solutions to grow your business
3
CORPORATE REFORMTIMELINES
  • THE COMPANIES ACT (Act 71 of 2008)
  • Enacted 8 April 2009
  • Planned Commencement Date 1 July 2010

Online solutions to grow your business
4
COMPETITION AMENDMENT ACT
  • Approved by Parliament 22 October 2008
  • Enacted 29 August 2009

Online solutions to grow your business
5
CONSUMER PROTECTION ACT (Act 68 of 2008)
  • Enacted 29 April 2009
  • Planned Commencement Date July 2010

KING III
Release Date 1 September 2009
Online solutions to grow your business
6
BOARD MISSION
  • SURVIVE AND SUCCEED
  • BEST INTEREST OF SHAREHOLDERS
  • BEST INTEREST OF COMPANY
  • CORPORATE STRATEGY
  • CORPORATE GOVERNANCE

Online solutions to grow your business
7
GOVERNANCE FRAMEWORK
SHAREHOLDERS
COMPANY
TRUSTEES
AGENTS
BOARD OF DIRECTORS
PERFORMANCE
CONFORMANCE
Online solutions to grow your business
8
BOARD STRUCTURE
BOARD OF DIRECTORS
EXECUTIVE
NON-EXECUTIVE
INDEPENDENT
OTHER
AUDIT COMMITTEE 3 or MORE DIRECTORS
Online solutions to grow your business
9
BOARD RESPONSIBILITIES
  • GOING CONCERN
  • SOLVENCY AND LIQUIDITY TEST
  • SOLVENCY FINANCIAL POSITION
  • NET ASSET VALUE
  • MARKET VALUES REALISABLE VALUES
  • LIQUIDITY
  • LIQUID ASSETS
  • SHORT TERM OBLIGATIONS
  • INSOLVENCY AUDIT
  • LONG TERM SUSTAINABILITY
  • SHORT TERM LIQUIDITY CAPACITY
  • CASH FLOW FROM OPERATIONS

Online solutions to grow your business
10
DIRECTOR RESPONSIBILITIES
  • CORE DUTIES SECTION 76
  • DISCLOSE ANY CONFLICT OF INTEREST
  • USE POSITION AND INFORMATION FOR COMPANYS
    BENEFIT
  • DISCLOSURE OF MATERIAL INFORMATION
  • PERFORM DUTIES
  • IN GOOD FAITH
  • IN BEST INTEREST OF THE COMPANY
  • - WITH CARE, SKILL AND DILIGENCE

Online solutions to grow your business
11
DIRECTOR RESPONSIBILITIES
  • STRATEGY AND CORPORATE STRUCTURE
  • DUTY TO COMPLY WITH THE ACT IN RELATION TO
    DIFFERENT TYPES OF COMPANIES (Section 8)
  • DUTY TO COMPLY WITH THE COMPANYS MEMORANDUM OF
    INCORPORATION (Section 13)
  • DUTY TO MANAGE THE BUSINESS AFFAIRS AT THE
    COMPANY (Section 66(1))
  • DUTY TO CARRY ON THE BUSINESS WITHOUT TRADING
    RECKLESSLY OR UNDER INSOLVENT CONDITIONS (Section
    22)

Online solutions to grow your business
12
DIRECTOR RESPONSIBILITIES
  • BOARD STRUCTURE AND CORPORATE ADMINISTRATION
  • DUTY TO APPOINT BOARD COMMITTEES (Section 72)
  • DUTY TO APPOINT AN AUDIT COMMITTEE (Section 94)
  • DUTY TO APPOINT A COMPANY SECRETARY (Section 84
    86)
  • DUTY TO CALL AND CONVENE A SHAREHOLDERS MEETING
    (Section 61)

Online solutions to grow your business
13
DIRECTOR RESPONSIBILITIES
  • ACCOUNTABILITY AND ASSURANCE
  • DUTY TO KEEP COMPANY RECORDS (Section 24)
  • DUTY TO KEEP ACCOUNTING RECORDS (Section 28)
  • DUTY TO COMPLY WITH CHAPTER 3 OF THE ACT (Section
    34(1) 94)
  • DUTY TO PAY DIRECTORS REMUNERATION IN TERMS OF
    MEMORANDUM OF INCORPORATION AND GET IT APPROVED
    BY SHAREHOLDERS BY SPECIAL RESOLUTION (Section
    66(8) 66(9))

Online solutions to grow your business
14
DIRECTOR RESPONSIBILITIES
  • ACCOUNTABILITY AND ASSURANCE CONTINUES
  • DUTY TO APPOINT AUDITORS (Section 90 92)
  • DUTY TO OBTAIN AN INDEPENDENT REVIEW OF THE
    FINANCIAL STATEMENTS (Section 30)

Online solutions to grow your business
15
DIRECTOR RESPONSIBILITIES
  • DISCLOSURE AND TRANSPARENCY
  • DUTY TO PREPARE ANNUAL FINANCIAL STATEMENTS
    (Section 29 30)
  • DUTY TO PREPARE A DIRECTORS REPORT (Section
    30(3))
  • DUTY TO ISSUE A PROSPECTUS (Section 100)
  • DUTY TO DISCLOSE DIRECTORS REMUNERATION
    INFORMATION (Section 30)
  • DUTY TO FILE AN ANNUAL RETURN (Section 33)

Online solutions to grow your business
16
DIRECTOR RESPONSIBILITIES
  • SHAREHOLDER TREATMENT
  • DUTY TO ENSURE THAT SHAREHOLDERS CAN EXERCISE
    THEIR VOTING POWER AND RIGHTS (Section 2(2) 58)
  • DUTY TO FACILITATE A SHAREHOLDERS MEETING
    (Section 61)
  • DUTY TO OPERATE WITHIN THE FRAMEWORK OF THE
    COMPANYS MEMORANDUM OF INCOPORATION (Section
    15(3) (4) 36)
  • DUTY TO OPERATE IN THE BEST INTEREST OF THE
    SHAREHOLDERS (Section 20(6) (7) THE COMPANY
    (Section 76(3))

Online solutions to grow your business
17
LIABILITIES OF DIRECTORS
  • NEW COMPANIES ACT
  • BREACH OF DUTIES
  • BREACH OF ACCOUNTABILITY (Section 213 Section
    214)
  • RECKLESS TRADING
  • PROSPECTUS LIABILITY
  • INSOLVENCY ACT( Section 424)
  • PERSONAL LIABILITY COMPANY

Online solutions to grow your business
18
COMPETITION AMENDMENT ACT
  • PURPOSE OF THE ACT
  • CRIMINAL LIABILITY
  • RISK
  • MITIGATING THE RISK

Online solutions to grow your business
19
CONSUMER PROTECTION ACT
  • MARKETING ACTIVITIES
  • DIRECT MARKETING AND COOLING-OFF PERIOD
  • ADVANCE RESERVATIONS AND BOOKINGS
  • DISCLOSURE AND INFORMATION
  • FAIR AND HONEST DEALING
  • OVER-SELLING
  • CONSUMER AGREEMENTS
  • FAIR VALUE, GOOD QUALITY AND SAFETY
  • DAMAGE CAUSED BY GOODS

Online solutions to grow your business
20
CONTINUES
  • FRANCHISE AGREEMENTS
  • BUSINESS NAMES
  • CLASS ACTIONS

Online solutions to grow your business
21
TYPES OF COMPANIES AND COMPLIANCE(New Companies
Act, Act 73 of 2008)
Compliance Requirements Public Companies State Owned Companies (SOC) Private Companies (in public interest)
Minimum number of Shareholders Minimum number of Directors Memorandum of Incorporation (MIC) Company Records Accounting Records Financial Statements (e.g. Annual Financial Statements) Audit 1 3 YES YES YES YES YES - 1 YES YES YES YES YES 1 1 YES YES YES YES YES
Online solutions to grow your business
22
TYPES OF COMPANIES AND COMPLIANCE(New Companies
Act, Act 73 of 2008)CONTINUES
Compliance Requirements Public Companies State Owned Companies (SOC) Private Companies (in public interest)
Independent Review Company Secretary Audit Committee Registered Address Annual Return Annual General Meeting Deadline for AFS (after financial year end) N/A YES YES YES YES YES 6 months N/A YES YES YES YES YES 6 months N/A NO NO YES YES NO 6 months
Online solutions to grow your business
23
TYPES OF COMPANIES AND COMPLIANCE(New Companies
Act, Act 73 of 2008)CONTINUES
Compliance Requirements Other Private Companies Personal Liability Company Non-Profit Company (NPC)
Minimum number of Shareholders Minimum number of Directors Memorandum of Incorporation (MIC) Company Records Accounting Records Financial Statements (e.g. Annual Financial Statements) Audit 1 1 YES YES YES YES By regulation or voluntary 1 1 YES YES YES YES NO 3 3 YES YES YES YES By regulation or voluntary
Online solutions to grow your business
24
TYPES OF COMPANIES AND COMPLIANCE(New Companies
Act, Act 73 of 2008)CONTINUES
Compliance Requirements Other Private Companies Personal Liability Company Non-Profit Company (NPC)
Independent Review Company Secretary Audit Committee Registered Address Annual Return Annual General Meeting Deadline for AFS (after financial year end) N/A NO NO YES YES NO 6 months YES NO NO YES YES NO 6 months N/A NO NO YES YES NO 6 months
Online solutions to grow your business
25
Online solutions to grow your business
26
THE END
Online solutions to grow your business
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BOARDS AND DIRECTORS RESPONSIBILITIES AND RISK THE IMPACT OF THE NEW COMPANIES ACT AND BUSINESS LEGISLATION PRESENTED BY DR JOHN W HENDRIKSE

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Title: BOARDS AND DIRECTORS RESPONSIBILITIES AND RISK THE IMPACT OF THE NEW COMPANIES ACT AND BUSINESS LEGISLATION PRESENTED BY DR JOHN W HENDRIKSE


1
BOARDS AND DIRECTORSRESPONSIBILITIES AND
RISKTHE IMPACT OF THE NEW COMPANIES ACTAND
BUSINESS LEGISLATIONPRESENTED BYDR JOHN W
HENDRIKSE
  • Online solutions to grow your business

2
BOARDS AND DIRECTORSRESPONSIBILITIES AND RISK
  • CORPORATE REFORM TIMELINES
  • BOARD MISSION
  • GOVERNANCE FRAMEWORK
  • BOARD STRUCTURE
  • BOARD RESPONSIBILITIES
  • DIRECTORS RESPONSIBILITIES
  • LIABILITIES OF DIRECTORS
  • COMPETITION AMENDMENT ACT
  • CONSUMER PROTECTION ACT
  • CAVEAT VENDITOR

Online solutions to grow your business
3
CORPORATE REFORMTIMELINES
  • THE COMPANIES ACT (Act 71 of 2008)
  • Enacted 8 April 2009
  • Planned Commencement Date 1 July 2010

Online solutions to grow your business
4
COMPETITION AMENDMENT ACT
  • Approved by Parliament 22 October 2008
  • Enacted 29 August 2009

Online solutions to grow your business
5
CONSUMER PROTECTION ACT (Act 68 of 2008)
  • Enacted 29 April 2009
  • Planned Commencement Date July 2010

KING III
Release Date 1 September 2009
Online solutions to grow your business
6
BOARD MISSION
  • SURVIVE AND SUCCEED
  • BEST INTEREST OF SHAREHOLDERS
  • BEST INTEREST OF COMPANY
  • CORPORATE STRATEGY
  • CORPORATE GOVERNANCE

Online solutions to grow your business
7
GOVERNANCE FRAMEWORK
SHAREHOLDERS
COMPANY
TRUSTEES
AGENTS
BOARD OF DIRECTORS
PERFORMANCE
CONFORMANCE
Online solutions to grow your business
8
BOARD STRUCTURE
BOARD OF DIRECTORS
EXECUTIVE
NON-EXECUTIVE
INDEPENDENT
OTHER
AUDIT COMMITTEE 3 or MORE DIRECTORS
Online solutions to grow your business
9
BOARD RESPONSIBILITIES
  • GOING CONCERN
  • SOLVENCY AND LIQUIDITY TEST
  • SOLVENCY FINANCIAL POSITION
  • NET ASSET VALUE
  • MARKET VALUES REALISABLE VALUES
  • LIQUIDITY
  • LIQUID ASSETS
  • SHORT TERM OBLIGATIONS
  • INSOLVENCY AUDIT
  • LONG TERM SUSTAINABILITY
  • SHORT TERM LIQUIDITY CAPACITY
  • CASH FLOW FROM OPERATIONS

Online solutions to grow your business
10
DIRECTOR RESPONSIBILITIES
  • CORE DUTIES SECTION 76
  • DISCLOSE ANY CONFLICT OF INTEREST
  • USE POSITION AND INFORMATION FOR COMPANYS
    BENEFIT
  • DISCLOSURE OF MATERIAL INFORMATION
  • PERFORM DUTIES
  • IN GOOD FAITH
  • IN BEST INTEREST OF THE COMPANY
  • - WITH CARE, SKILL AND DILIGENCE

Online solutions to grow your business
11
DIRECTOR RESPONSIBILITIES
  • STRATEGY AND CORPORATE STRUCTURE
  • DUTY TO COMPLY WITH THE ACT IN RELATION TO
    DIFFERENT TYPES OF COMPANIES (Section 8)
  • DUTY TO COMPLY WITH THE COMPANYS MEMORANDUM OF
    INCORPORATION (Section 13)
  • DUTY TO MANAGE THE BUSINESS AFFAIRS AT THE
    COMPANY (Section 66(1))
  • DUTY TO CARRY ON THE BUSINESS WITHOUT TRADING
    RECKLESSLY OR UNDER INSOLVENT CONDITIONS (Section
    22)

Online solutions to grow your business
12
DIRECTOR RESPONSIBILITIES
  • BOARD STRUCTURE AND CORPORATE ADMINISTRATION
  • DUTY TO APPOINT BOARD COMMITTEES (Section 72)
  • DUTY TO APPOINT AN AUDIT COMMITTEE (Section 94)
  • DUTY TO APPOINT A COMPANY SECRETARY (Section 84
    86)
  • DUTY TO CALL AND CONVENE A SHAREHOLDERS MEETING
    (Section 61)

Online solutions to grow your business
13
DIRECTOR RESPONSIBILITIES
  • ACCOUNTABILITY AND ASSURANCE
  • DUTY TO KEEP COMPANY RECORDS (Section 24)
  • DUTY TO KEEP ACCOUNTING RECORDS (Section 28)
  • DUTY TO COMPLY WITH CHAPTER 3 OF THE ACT (Section
    34(1) 94)
  • DUTY TO PAY DIRECTORS REMUNERATION IN TERMS OF
    MEMORANDUM OF INCORPORATION AND GET IT APPROVED
    BY SHAREHOLDERS BY SPECIAL RESOLUTION (Section
    66(8) 66(9))

Online solutions to grow your business
14
DIRECTOR RESPONSIBILITIES
  • ACCOUNTABILITY AND ASSURANCE CONTINUES
  • DUTY TO APPOINT AUDITORS (Section 90 92)
  • DUTY TO OBTAIN AN INDEPENDENT REVIEW OF THE
    FINANCIAL STATEMENTS (Section 30)

Online solutions to grow your business
15
DIRECTOR RESPONSIBILITIES
  • DISCLOSURE AND TRANSPARENCY
  • DUTY TO PREPARE ANNUAL FINANCIAL STATEMENTS
    (Section 29 30)
  • DUTY TO PREPARE A DIRECTORS REPORT (Section
    30(3))
  • DUTY TO ISSUE A PROSPECTUS (Section 100)
  • DUTY TO DISCLOSE DIRECTORS REMUNERATION
    INFORMATION (Section 30)
  • DUTY TO FILE AN ANNUAL RETURN (Section 33)

Online solutions to grow your business
16
DIRECTOR RESPONSIBILITIES
  • SHAREHOLDER TREATMENT
  • DUTY TO ENSURE THAT SHAREHOLDERS CAN EXERCISE
    THEIR VOTING POWER AND RIGHTS (Section 2(2) 58)
  • DUTY TO FACILITATE A SHAREHOLDERS MEETING
    (Section 61)
  • DUTY TO OPERATE WITHIN THE FRAMEWORK OF THE
    COMPANYS MEMORANDUM OF INCOPORATION (Section
    15(3) (4) 36)
  • DUTY TO OPERATE IN THE BEST INTEREST OF THE
    SHAREHOLDERS (Section 20(6) (7) THE COMPANY
    (Section 76(3))

Online solutions to grow your business
17
LIABILITIES OF DIRECTORS
  • NEW COMPANIES ACT
  • BREACH OF DUTIES
  • BREACH OF ACCOUNTABILITY (Section 213 Section
    214)
  • RECKLESS TRADING
  • PROSPECTUS LIABILITY
  • INSOLVENCY ACT( Section 424)
  • PERSONAL LIABILITY COMPANY

Online solutions to grow your business
18
COMPETITION AMENDMENT ACT
  • PURPOSE OF THE ACT
  • CRIMINAL LIABILITY
  • RISK
  • MITIGATING THE RISK

Online solutions to grow your business
19
CONSUMER PROTECTION ACT
  • MARKETING ACTIVITIES
  • DIRECT MARKETING AND COOLING-OFF PERIOD
  • ADVANCE RESERVATIONS AND BOOKINGS
  • DISCLOSURE AND INFORMATION
  • FAIR AND HONEST DEALING
  • OVER-SELLING
  • CONSUMER AGREEMENTS
  • FAIR VALUE, GOOD QUALITY AND SAFETY
  • DAMAGE CAUSED BY GOODS

Online solutions to grow your business
20
CONTINUES
  • FRANCHISE AGREEMENTS
  • BUSINESS NAMES
  • CLASS ACTIONS

Online solutions to grow your business
21
TYPES OF COMPANIES AND COMPLIANCE(New Companies
Act, Act 73 of 2008)
Compliance Requirements Public Companies State Owned Companies (SOC) Private Companies (in public interest)
Minimum number of Shareholders Minimum number of Directors Memorandum of Incorporation (MIC) Company Records Accounting Records Financial Statements (e.g. Annual Financial Statements) Audit 1 3 YES YES YES YES YES - 1 YES YES YES YES YES 1 1 YES YES YES YES YES
Online solutions to grow your business
22
TYPES OF COMPANIES AND COMPLIANCE(New Companies
Act, Act 73 of 2008)CONTINUES
Compliance Requirements Public Companies State Owned Companies (SOC) Private Companies (in public interest)
Independent Review Company Secretary Audit Committee Registered Address Annual Return Annual General Meeting Deadline for AFS (after financial year end) N/A YES YES YES YES YES 6 months N/A YES YES YES YES YES 6 months N/A NO NO YES YES NO 6 months
Online solutions to grow your business
23
TYPES OF COMPANIES AND COMPLIANCE(New Companies
Act, Act 73 of 2008)CONTINUES
Compliance Requirements Other Private Companies Personal Liability Company Non-Profit Company (NPC)
Minimum number of Shareholders Minimum number of Directors Memorandum of Incorporation (MIC) Company Records Accounting Records Financial Statements (e.g. Annual Financial Statements) Audit 1 1 YES YES YES YES By regulation or voluntary 1 1 YES YES YES YES NO 3 3 YES YES YES YES By regulation or voluntary
Online solutions to grow your business
24
TYPES OF COMPANIES AND COMPLIANCE(New Companies
Act, Act 73 of 2008)CONTINUES
Compliance Requirements Other Private Companies Personal Liability Company Non-Profit Company (NPC)
Independent Review Company Secretary Audit Committee Registered Address Annual Return Annual General Meeting Deadline for AFS (after financial year end) N/A NO NO YES YES NO 6 months YES NO NO YES YES NO 6 months N/A NO NO YES YES NO 6 months
Online solutions to grow your business
25
Online solutions to grow your business
26
THE END
Online solutions to grow your business
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