A ‘domesticated company’ means a foreign company whose registration has been transferred to the Republic ito section 13(5)-(11) of the Act:
A foreign company may apply the prescribed manner and form, accompanied by the prescribed application fee, to transfer its registration to the Republic from the foreign jurisdiction in which it is registered, and thereafter exists as a company in terms of this Act as if it had been originally so incorporated and registered.
A foreign company may transfer its registration if the law of the jurisdiction in which the company is registered permits such a transfer, and the company has complied with the requirements of that law in relation to the transfer – the transfer has been approved by the company’s shareholders in accordance with the law of the jurisdiction in which the company is registered if that law imposes such a requirement or by the equivalent of a special resolution in terms of this Act, if the law of the jurisdiction in which the company is registered does not require such shareholder approval; the whole or greater part of its assets and undertaking are within the Republic, other than the assets and undertaking of any subsidiary that is incorporated outside the Republic; the majority of its shareholders are resident in the Republic; the majority of its directors are or will be South African citizens; and immediately following the transfer of registration, the company will satisfy the solvency and liquidity test; and will no longer be registered in another jurisdiction.
A foreign company may not transfer its registration to the Republic, if the foreign company is permitted, in terms of any law or its Articles or Memorandum of Incorporation, to issue bearer shares or has issued any bearer shares that remain issued; the foreign company is in liquidation a receiver or manager has been appointed, whether by a court or otherwise, in relation to the property of the foreign company; the foreign company is engaged in proceedings comparable to business rescue proceedings in terms of this Act or is subject to an approved plan, or a court order, comparable to an approved business rescue plan in terms of this Act or has entered into a compromise or arrangement with a creditor, and the compromise or arrangement is in force or an application has been made to a court in any jurisdiction, and not fully disposed of to put the foreign company into liquidation, to wind it up or to have it declared insolvent, for the approval of a compromise or arrangement between the foreign company and a creditor, or for the appointment of a receiver or administrator in relation to any property of the foreign company.
The Minister may make regulations prescribing forms and procedures for the consideration of applications, for the registration of domesticated companies and for the issuing of registration certificates to such companies; and establishing requirements for each domesticated company to harmonise its Memorandum of Incorporation with this Act.
Upon compliance of the requirements for registration of a domesticated company, the Commissioner must issue to such company a registration certificate to the effect that such registration has taken place and that it deemed that the company has been incorporated under this Act.
The registration of a domesticated company does not establish a new juristic person, prejudice or affect the identity of the body corporate constituted by that domesticated company, or its continuity as a juristic person, prejudice the rights of any person or affect the property, rights, liabilities or obligations of that juristic person or render ineffective any legal proceedings by or against that juristic person.
An ‘external company’ means a foreign company that is carrying on business, or non-profit activities within the Republic.
An external company must register with the Commission within 20 business days after it first begins to conduct business, or non-profit activities, as the case may be, within the Republic as an external non-profit company if, within the jurisdiction in which it was incorporated, it meets legislative or definitional requirements that are comparable to the legislative or definitional requirements of a non-profit company incorporated under this Act or as an external profit company in any other case.
A ‘foreign company’ means an entity incorporated outside the Republic, irrespective of whether it is a profit or non-profit entity, or carrying on business or non-profit activities within the Republic.
A foreign company must be regarded as “conducting business, or non-profit activities, as the case may be, within the Republic “if that foreign company is a party to one or more employment contracts within the Republic is engaging in a course of conduct, or has engaged in a course or pattern of activities within the Republic over a period of at least six months, such as would lead a person to reasonably conclude that the company intended to continually engage in business or non-profit activities within the Republic.
A foreign company must not be regarded as “conducting business activities, or non-profit activities, as the case may be, within the Republic” solely on the ground that the foreign company is or has engaged in one or more of the following activities holding a meeting or meetings within the Republic of the shareholders or board of the foreign company, or otherwise conducting any of the company’s internal affairs within the Republic, establishing or maintaining any bank or other financial accounts within the Republic, establishing or maintaining offices or agencies within the Republic for the transfer, exchange, or registration of the foreign company’s own securities, creating or acquiring any debts within the Republic, or any mortgages or security interests in any property within the Republic, securing or collecting any debt, or enforcing any mortgage or security interest within the Republic, acquiring any interest in any property within the Republic.
Each company or external company must continuously maintain at least one office in the Republic and register the address of its office, or its principal office if it has more than one office initially in the case of a company, by providing the required information on its Notice of Incorporation or an external company, by providing the required information when filing its registration and subsequently, by filing a notice of change of registered office, together with the prescribed fee.
If an external company has failed to register within three months after commencing its activities within the Republic, the Commission may issue a compliance notice to that external company requiring it to register within 20 business days after receiving the notice or if it fails to register within the time allowed to cease carrying on its business or activities within the Republic.