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KING III: THE AUDIT COMMITTEE
INTRODUCTION
5. Expertise, resources and experience of
King III will be effective from 1 March 2010 and imposes management:
an obligation on Companies to appoint an audit committee (“committee”) to enable it to perform its functions. The purpose of this article is to set out the King annually consider the appropriateness of the expertise, resources and experience of the MEMBERSHIP
A holding company’s committee must have at least 3 In Public companies the committee must also members who are independent non-executive directors. evaluate the suitability of the finance director The chairman of the committee and the chairman of the and recommend changes to the Board where board of directors cannot be the same person. Certain Minimum qualifications and experience are required in respect of corporate law, financial risk and 6. Combined Assurance Model:
sustainability reporting as well as international and other reporting standards. The committee is responsible for ensuring that assurance by management and internal and Public companies must ensure that committee external auditors sufficiently satisfies the appointments comply with qualification criteria to be committee that significant risk areas are established by the Minister as contemplated in section 95 adequately addressed and that suitable risk (4) of the Companies Act No. 71 of 2008, and any premature termination of the services of any committee member must be approved by the relevant executive authority of the (public) company. The committee is responsible for monitoring the RESPONSIBILITIES
The committee should meet at least twice per annum and should oversee stakeholder reporting, including: INTERNAL ASSURANCE
1.Financial reporting:
The committee is responsible for overseeing the scrutinise all relevant narrative information so as should be an integral component of the risk to ensure it presents a balanced view of the 2. Interim results:
Consider whether there are reasons for internal and external auditors to perform assurance procedures (quarterly or 6 monthly); and REPORTING
The committee should report to the Board and stakeholders as to how its duties have been carried out. 3.Summarised Financial Information: engage external
4.Integrated sustainability reporting:
assist the Board in reviewing sustainability reporting; and consider and recommend the necessity of engaging external auditors to provide assurance. DIRECTORS APPOINTMENT: (CM 29) DOES ONE REQUIRE A CM29 CONFIRMATION FROM
CIPRO AS PROOF OF DIRECTOR CHANGES?
On 25 February 2009 Cipro posted a notice on its website - Section 215 then obliges a company to keep a
informing its clients that the service whereby a CM29 can register of directors and it sets out the requirements for
be electronically lodged are temporarily suspended until such a register, but again it assumes that the name of further notice since it came to the Registrar’s attention the person entered into the register is already a director that certain areas on their website are not well protected of the company. It imposes a criminal sanction for non- against fraud and consequently require system changes. compliance, but clearly does not prescribe a precondition This resulted in the Registrar being inundated with manual applications. Unfortunately for companies, Cipro - Section 216(1)(a) also requires that persons whose
does not have the manpower to deal with the processing details need to be entered into the register of
of these lodgments in an effective and time efficient directors, must provide the information necessary for
manner. Currently one can expect to wait between 10 to keeping the register to the company within 21 days of 12 weeks before receiving a CM29 confirmation. appointment. The observations made with regard to s 211 will also apply here. Although the form CM27 does Praise must go to the officials tasked with processing the not explicitly mention, it the lodging of a properly filled out overwhelming manual lodgments of CM29's as they will form CM27 with the company will also constitute go out of their way to assist those clients who urgently need a CM29 confirmation if shown good cause. However, many companies are experiencing the - Sections 216(2) and 216(3) then dictate that the
frustration of this unfortunate time consuming process company must within fourteen days of receiving the since other entities such as SARS, auditors and financial particulars that it will have to enter into the register, institutions request a CM29 confirmation as proof that a established in terms of s 215, lodge a return with the director is newly appointed or has resigned. This can Registrar on form CM 29. Again it is clear from ss 216(2) have unfortunate financial and other implications for and 216(3) that this provision does not affect the validity But is this abovementioned requirement fair and legally Conclusion
correct? When is a director regarded as appointed/ resigned legally? Is it when one receives the CM29 The scheme clearly only requires that information about confirmation from the Registrar or when appointed/ resigned by the company by way of an ordinary a particular fact, ie is the appointment of a director, must be communicated to the Registrar. It assumes that the details provided will be of a person who is already a
director. Non-compliance does not lead to invalidity
In the absence of any provision in the articles of a of appointment, but to criminal sanction. Notice of
company or the Companies Act, No 73 of 1963 (hereinafter referred to as the “Act”), in dealing with the appointment and changes in the particulars treated are in appointment of directors, the common law will apply. According to the common law the members of a company in general meeting have the power to appoint directors by This clearly indicates that proper appointment is not affected by furnishing of details to the Registrar (or Cipro). It is clear that this is how these provisions are Directors will become validly appointed through the
generally viewed. A cursory glance at the information act of appointment. No other formalities are prescribed.
kept by Cipro clearly indicates that very many directors So, if a resolution of the members provides simply that Mr are not accurately reflected in the records kept by Cipro, X is appointed as director and he consents to his yet these persons remain effective directors of the appointment, he will, according to the common law, companies to which they have been appointed. henceforth be a validly appointed director. Of course the members can provide for appointment to take effect at Nevertheless, other entities still demand a CM29 another point in time, but it is submitted that this will occur confirmation from the Registrar before acknowledging only where express provision is made for it or where it that a Director is appointed/ resigned by the company. can be inferred clearly from the circumstances. Hopeful y the Registar’s proposed “proof of concept of To what extent is this rule affected by a company’s the customer verification” system will final y be tested articles and memorandum of association or the Act? The and effectively implemented soon and provide relief for articles of a company normally determine the procedures for the appointment of directors in some special circumstances (see Schedule 1 Table B art 67-71), but this ordinary power of members, namely to appoint directors, is seldom affected by the articles. The Companies Act itself also does not prevent the immediate appointment of a director by the members.
- Section 211 provides for the formal consent to
appointment by a director. It provides that a director
must give written consent to appointment (on form
CM27), but it is clear that this is not a prerequisite for
valid appointment. The Act states merely that written
consent must be given within 21 days of appointment or a
longer period provided by the Registrar. Failure to comply
with the provision is visited with criminal sanction, but it
does not affect the validity of an appointment.

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