Since the inception of the New Companies Act, No. 71 of 2008, (the Act) a fair amount of confusion exists as to the correct practice and procedure that must be applied to effect the change of name of a Company or Close Corporation:
Where change of name was affected prior to 1 May 2011
The practice and procedure to record the change of name of a Company or Close Corporation which changed its name prior to 1 May 2011 (the date the Act came into operation) remains the same, in that merely proof of the name change from the Registrar of Companies / CIPC must be lodged in a yellow cover (no application is required).
Where change of name of a Company was affected after 1 May 2011
A section 93 application must be lodged by the owner/holder (not the conveyancer) together with proof of the change of name of the company in the form of an amended registration certificate, issued in terms of Section 14 or 16 of the Act. No consents from bondholders are required, and all affected deeds need not be lodged simultaneously for endorsing.
Change of Name of Close Corporation before or after 1 May 2011
The practice and procedure have not changed and the only requirement to affect the name change is proof of such name change lodged in a yellow lodgement cover (no application is required).
Conditional clauses and names of Companies
Where a Company’s name appears in a condition of title, such as servitude rights, restrictive or other conditions, it will not be necessary to change the name when the conditions are brought forward into a new deed. It will also not be necessary to update the title deed to reflect the new name of the Company.
However, where there is a condition in a title deed indicating that consent (for e.g. transfer of that property) is required from a Company that has changed its name, such consent must reflect both the new and former name of the Company.
Where a mortgagee Company has changed its name (once or several times) it will not be necessary to endorse the bonds to indicate the change in name when such bonds are lodged for cancellation.
However, the consent to cancellation must refer to all changes of the name.
Conversion from a private company to a public company and vice versa
The Act does not provide for the conversion of a private Company into a public Company, or vice versa. The provisions of section 3(1)(v) of Act No. 47 of 1937 must be invoked to record such conversions.
An application in terms of section 3(1)(v) of Act No. 47 of 1937 must be lodged, together with proof of the conversion and the relevant title deed(s).
The status quo remains regarding the endorsement of deeds and documents to reflect a conversion affected prior to 1 May 2011, in terms of the repealed Companies Act No. 61 of 1973.
For a full discussion on this aspect, you are requested to consult CRC 28 of 2013.
Should you require any more information on this matter, do not hesitate to contact us.
TONKIN CLACEY PRETORIA
012 346 1278