Exam (elaborations)
MRL2601 EXAM PACK UPDATED PACK 2023.
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- University Of South Africa
MRL2601 EXAM PACK UPDATED PACK 2023.
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MRL2601 EXAM PACKUPDATED PACK 2023.
,Section A
Question 1.
1. What documents must be filed with the Companies and Intellectual
Property Commission to register a company?
The Notice of Incorporation and the Memorandum of Incorporation
2. How flexible is the Memorandum of Incorporation?
One may include any provision or change any provision in a
Memorandum of Incorporation as long as it is consistent with the
Companies Act 71 of 2008.
3. What is the legal status of the Memorandum of Incorporation and the
rules developed by the board of directors?
They are binding on several persons in terms of section 15 of the
Companies Act. The relationship created is contractual in nature.
4. List five matters that must be contained in a company’s Memorandum of
Incorporation.
The Memorandum of Incorporation contains the following information:
details of the incorporators
the number of directors and alternate directors
the share capital (maximum issued)
the content of the Memorandum of Incorporation
Unalterable provisions
5. List three main differences between profit companies and non-profit
companies
A profit company aims to make a profit which is to be divided between
its shareholders.
The purpose for incorporation of a non-profit company is much
different. It must be for a cultural, social or public benefit or other object
than financial gain for its shareholders.
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, 6. What factors would the court consider to ascertain whether or not a
proposed name is undesirable? Refer to relevant case law in your
answer.
The activities that the companies engaged in;
The similarity in the names and whether it would cause confusion;
The client bases of the respective companies;
whether the name is undesirable and calculated to cause harm to the
other company;
The likelihood that members of the public would be confused in their
dealings with the competing companies;
The date of registration of the companies would also play a role.
Peregrine Group (Pty) Ltd & others v Peregrine Holdings Ltd &
others
7. Who can order a name change where a name to be registered is similar
to an existent company’s name?
The High Court can make an order to change a name if the matter is
referred to it and passing-off is successfully proven. Disputes regarding
names may also be referred to the Companies Tribunal or the Human
Rights Commission in terms of section 160 of the Companies Act.
8. The power given to a court to declare a director delinquent or place a
director under probation has been introduced into South African
corporate law for the first time by the Companies Act 71 of 2008. Answer
the following questions regarding this remedy:
1. Under what section of the Companies Act 71 of 2008 is this action
instituted?
In terms of section 162 of the Companies Act 71 of 2008.
2. Name three persons who may bring the application
Any one of the following may apply for a delinquency order:
a company
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, a shareholder
a director
a company secretary or prescribed officer
a registered trade union/other employee representative
The Commission or Takeover Regulation Panel or a state organ may
also in certain circumstances apply to declare a director delinquent.
3. List three grounds on which an application for a delinquency order may be
brought
Grounds for the order: The person
served as a director while disqualified, or
acted as a director while under probation in a manner that
contravened the order of probation
grossly abused the position of director
took personal advantage of information/an opportunity
intentionally/ as a result of gross negligence inflicted harm on
the company/subsidiary
acted in a manner that amounts to gross negligence, wilful
misconduct or breach of trust
4. What three additional conditions can the court attach to a declaration of
delinquency)
The court may, in a declaration of delinquency, order that the person
undergo remedial education
carry out a designated programme of community service
pay compensation
5. The consequences of such an order.
The person will not be allowed to serve as a director for a specific
period of time.
Note that this application may be made only in those cases where
the declaration was not made unconditional and for the lifetime of
the person declared delinquent.
Also note that the applicant first has to apply for a suspension of the
order and then, after a further two years, may apply for it to be set
aside.
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