Brink Cohen Le Roux looks to establish a more visible footprint in Africa through cross-border professional services
Our firm has become synonymous with service excellence and specialist advice, which our firm strives to maintain. In seeking to pursue such objectives, we provide value-added solutions with a smaller hands-on team than our larger competitors.
At its formation in 1993, the founding partners shared a common vision to develop a boutique corporate law firm offering specialised knowledge and personalised service with value-added solutions. BCLR believes in optimal outcomes, strengthened by long-term relationships and service excellence at every contact across the firm. The firm’s current vision is to remain a leading South African legal niche firm, committed to meeting its empowerment objectives.
BCLR is a boutique firm of attorneys offering a full range of legal expertise critical to corporate clients. In each focus area, we offer recognised intellectual leadership and proven commercial acumen, with creative thinking core to our approach. Our ability to understand the rapidly evolving local and regional business environment enables us to assist local clients in the pursuit of global objectives and foreign clients in the structuring and development of their local interests. We service a broadly based multinational corporate client base.
The significant areas of practice of our firm include the following: banking and finance (including debt structuring, financial markets and securities), competition law (anti-trust) and international trade, employment, litigation and ADR, mergers and acquisitions, mining and resources, occupational health and safety, stock exchange and takeover panel law and general commercial and corporate (including flotations, licensing and franchising, mining commercial and sport and entertainment).
We are the South African member firm of Interlaw, an international association of more than 70 independent law firms in 125 business centres worldwide. Interlaw gives our clients direct access to competent and readily accessible local lawyers in all major trade centres, worldwide.
Our firm’s objectives for the near future include, among others:
1. The consolidation of our position as a leading South African legal niche firm
2. The establishment of a more visible footprint in Africa through the provision of cross-border professional services in other African countries.
Companies Act 2008
The South African Companies Act, 2008 (‘New Act’) came into force on May 1, 2011. There is a two year window period for all existing companies until May 1, 2013, to file a new memorandum of incorporation (‘MOI’). In the interim, certain transitional provisions apply. Some of the key aspects of the New Act are the following:
What remains unchanged?
Pre-existing companies continue to exist under the same name and registration number. Existing directors, officers and the auditor continue to hold office. Court proceedings continue and rights and obligations remain in full force and effect.
There are many alterable provisions, which allow companies to elect custom-made solutions (e.g. the majority for special resolutions could be more or less than 75 percent) and the majority for ordinary resolutions 50 percent or more, provided there is at least a 10 percent difference between the two levels of approval.
In addition to holding majority voting rights or board control, the ability to influence the policy of the company (e.g. veto rights on key decisions) amounts to “control.”
Still allowed but it will be void to the extent inconsistent with the new Act or the company’s MOI. Existing shareholder agreements should not be amended during the two-year window period. If they are, the two-year moratorium is lost.
The doctrine of ‘constructive notice’ (deemed knowledge of MOI) has been abolished except if the company has the letters “RF” (ring-fenced) in its name. Third parties can still assume internal capacity and authority requirements have been complied with (Turquand Rule retained).
Are required for any amendment of the MOI, (being the only instance where registration is required), ratifying actions by company or directors, authorising financial assistance, reacquisition of shares, voluntary winding-up and fundamental transactions.
Board of directors
Private companies must have at least one director and public companies at least three. Directors must disclose personal financial interests.
Directors’ duties are now codified. Directors (including alternates, prescribed officers and members of board committees) incur joint and several personal liability, if they fail to comply with fiduciary duties or the duty to act with care, skill and knowledge. Directors can be declared ‘delinquent’ and blacklisted from becoming a company director.
Disposals by companies of all or greater part of the company’s assets or undertaking, amalgamations or mergers and schemes of arrangement are “fundamental transactions” which require special resolutions and in certain instances, independent expert reports and compliance with the Acts’ solvency and liquidity tests.
Chapter 5 and takeover regulations
Private companies which have transferred more than 10 percent of their securities in the previous 24 months and all public companies must comply with Part B and C of Chapter 5 and the Takeover Regulations. The Takeover Regulation Panel ensures compliance with the relevant provisions of the Companies Act. Listed companies also have to comply with the Listings Requirements of the JSE Limited in Johannesburg.
If five percent or more of the issued shares of a company are being bought back, a scheme of arrangement is required.
Is allowed in connection with any purchase of or subscription for shares, provided a special resolution is passed, the prescribed solvency and liquidity tests are met and directors satisfy themselves that financial assistance is fair and reasonable. All loans to related and inter-related companies require the same level of approval.
Common law derivative actions have been abolished. Shareholder remedies are now codified in sections 163-165 of the New Act. Shareholders enjoy appraisal rights to demand a buy-out by the underlying company of their shares at fair value if they vote against fundamental transactions and the transaction is approved by the majority. Remedial action is still available for oppressive or prejudicial conduct.
Audit or review
A company’s public interest score determines whether it is obliged to have its annual financial statements (AFS) audited or reviewed. The public interest score is determined by calculating the sum of the following:
a) a number of points equal to the number of employees of the company during the financial year;
b) one point for every ZAR1m in third party liability;
c) one point for every ZAR1m in turnover during the financial year;
d) one point for every individual who has a direct or indirect beneficial interest in the company.
A public company is obliged to have its AFS audited and a private company if its public interest score is: 350 or more; or at least 100, if its AFS were internally compiled.
In summary, South Africa has a well regulated M&A regulatory regime, consisting of the Companies Act, 2008, the Takeover Panel Regulations, the Listings Requirements of the JSE Limited and the Competition Act, 2008. It is comparable to any regulatory environment in developed economies worldwide and backed up by competent and experienced professional advisers.