A company's share capital and the acquisition of its own shares : a critical comparison between the relevant provisions of the Companies Act 61 of 1973 and the Companies Act 71 of 2008

Abstract

The Companies Act 71 of 2008 (“2008 Companies Act”) will have far reaching effects on the manner in which a company is formed and operated under South African company law and in particular entrenches the procedure that must be followed by a company when acquiring its own shares. The radical amendment of the capital maintenance rules by the introduction of the solvency and liquidity tests to the Companies Act 61 of 1973 has been carried forward under the 2008 Companies Act. These tests impose an obligation on a company to ensure that the company is both solvent and liquid at the time of the acquisition of its own shares and for a stated period thereafter. The 2008 Companies Act further brings the duties and liabilities of the directors in line with their current fiduciary duties in terms of common law.