Godknows Hofisi-Business Law
I have previously written many articles on company law covering issues such as shares, directors, shareholders, meetings, key company secretarial documents, etc.
In this article I address how to replace lost company documents that entities would have filed at the Registrar of Companies and Other Business Entities (the Registrar).
Some of the key company constitutive or secretarial documents include the following:
Certificate of incorporation.
CR5, notice of registered office.
CR6, register of directors and secretaries.
CR11, return of allotments.
Memorandum and Articles of Association.
Registrable business entities
For the reader’s convenience it is explained here that according to section 5 of the Companies and Other Business Entities Act (Chapter 24:31), “the COBE Act” or “the Act, the following business entities are registrable under the Act:
A public limited company.
A private limited company.
A company limited by guarantee.
A co-operative company.
A foreign company.
A private business corporation.
Subject to section 278 (Voluntary registration of partnership agreements, etc) partnerships, syndicates, joint venture and certain associations of persons.
Replacing lost documents
This is covered in section 16 of the COBE Act. According to section 16(1) of the COBE Act where a document required to be filed by a registered business entity has been lost, defaced or destroyed, or where the Registrar cannot locate the file copy of a document, the registered business entity may apply to the Registrar in the prescribed manner for leave to file a copy of the document, and the Registrar, on being satisfied on the factors listed below, may certify on the copy that he or she is so satisfied and direct that the copy be filed in the same manner as the original document:
a) That the original document has been lost, defaced or destroyed, and
b) Of the date of the filing of the original document, and
c) That the copy of the document produced is a correct copy.
According to section 16(2) where the Registrar has lost or cannot locate a document that was filed in the Companies office, no fee shall be payable for filing a copy in terms of section 16(1). A copy filed shall have the same effect as the original document.
According to section 16(4) where a document required to be issued by the Registrar has been lost, defaced or destroyed, the Registrar shall upon application in the prescribed manner replace the document. Section 16(5) requires the company secretary to submit all the contemplated applications together with affidavits as prescribed in the regulations.
Effect on replaced documents
In terms of section 16(6) of the COBE Act, if a duplicate certificate has been issued in substitution for a certificate which has been lost, defaced or destroyed, the original certificate if still in existence shall thereupon become void and in the case of a defaced certificate, the applicant for its replacement must return it to the Registrar.
If a certificate which has become void in terms of section 16(6) comes into the possession or custody of any person who knows that a duplicate has been issued in substitution therefor, he or she must without delay deliver or transmit such certificate to the Registrar.
Fraudulent application to replace document
Fraudulent application to replace a document is an offence in terms of section 16(8). According to the section, if any person makes a fraudulent application for the replacement for a lost, defaced or destroyed document or certificate under this section, or if a person contravenes section 16(7), he or she shall be guilty of an offence and liable to a fine not exceeding level seven or to imprisonment for a period not exceeding one year, or both such fine and such imprisonment.
Replacement of lost, defaced or destroyed company secretarial documents is common in business. Make sure you understand how to do it or your business advisor, company secretary or legal advisor can do it for you.
This simplified article is for general information purposes only and does not constitute the writer’s professional advice.
Godknows (GK) Hofisi, LLB(UNISA), B.Acc(UZ), CA(Z), MBA(EBS,UK) is a legal practitioner / conveyancer, chartered accountant, corporate rescue practitioner, registered tax accountant, consultant in deal structuring and business valuer. He is also a director with Investacare International (Private) Limited. He writes in his personal capacity. He can be contacted on +263 772 246 900 or [email protected]