How to Create a MOI in South Africa: Step-by-Step Guide

A Memorandum of Incorporation (MOI) is the constitutional document every South African company is required to have under the Companies Act 71 of 2008, and the company cannot be registered or trade without one. The MOI is filed with the Companies and Intellectual Property Commission (CIPC) on incorporation — either the default MOI that applies automatically to a profit company, or a customised MOI drafted to suit the company’s needs. A non-profit company has no default and must file a customised MOI including the provisions required by Item 1 of Schedule 1. Any clause inconsistent with the Act is void, so the practical drafting question is how to express the founders’ choices in language the Act does not override.

What an MOI Is and Why Every South African Company Needs One

The Companies Act 71 of 2008 replaced the old Companies Act 61 of 1973, doing away with the previous “Articles” and “Memorandum of Association” framework in favour of a single constitutional document — the MOI. The MOI sets out how the company is governed: who its directors are, how they are appointed, what decisions require shareholder approval, what classes of shares exist, and how shareholder rights are exercised. Together with the Companies Act, it is the binding set of rules for the company.

A company cannot trade or be registered without a registered MOI; an existing company that operates without one is in breach of the Act and its directors carry the risk of personal liability. The firm’s Commercial Law practice treats MOI drafting as a standard part of a new company registration.

Choosing Between the Default MOI and a Customised MOI

The Act gives a profit company a choice: adopt the default MOI in Schedule 1, or file a customised MOI tailored to its governance needs. A non-profit company does not have that choice — it must file a customised MOI with the Schedule 1 non-profit provisions built in.

Option	When it fits	Filing form	Key limitation
Default MOI (applies automatically)	A standard profit company (Pty Ltd or Ltd) with no special governance needs	Form CoR 15.1.B — adopted by reference	A one-size-fits-all set of rules; no flexibility on share classes, director appointment, or shareholder rights
Customised MOI	A profit company that needs tailored governance, multiple share classes, or restrictions on share transfer; any non-profit company (no default available)	Form CoR 15.1.A — full custom text	Every clause must be tested against the Companies Act; any inconsistent clause is void
Amended MOI (post-incorporation)	A company that adopts the default and then needs to change it later	Form CoR 15.2 — special resolution required	Requires a 75% shareholder special resolution and a filing fee; any change must still be Act-compliant

The Creation Process, Step by Step

1. Confirm the company type. Profit (Pty Ltd under section 8(2)(a), or Ltd under section 8(2)(b)) or Non-Profit (NPC under section 8(2)(c)). The type drives whether a default MOI is available and what Schedule 1 provisions an NPC must include.
2. Decide on default vs custom MOI. For a profit company, choose whether the Schedule 1 rules are sufficient or tailored clauses are needed on director appointment, share transfers, or shareholder rights. For an NPC, a custom MOI is mandatory.
3. For an NPC, draft the mandatory non-profit provisions. Item 1 of Schedule 1 requires the main object, the non-distribution to members, the application of assets to the object, and the winding-up rules. Missing any renders the company non-compliant.
4. For a customised MOI, prepare the text. Cover the name and reservation confirmation, company type, business and (for NPCs) main object, share capital and classes with attaching rights, director appointment and remuneration, shareholder meeting rules, and the procedure for amending the MOI.
5. Cross-check every clause against the Companies Act. Any inconsistent provision is void. Watch for clauses overriding shareholders’ statutory rights (e.g. to inspect the register), restricting director duties in ways the Act does not permit, or raising quorum or special-resolution thresholds above the Act.
6. Adopt the MOI by special resolution. A customised MOI must be adopted by a special resolution (75% of voting rights) of the incorporators before registration. For an existing company moving from default to custom, the same threshold applies plus Form CoR 15.2.
7. File with CIPC and pay the fee. Lodge Form CoR 15.1.A (custom) or Form CoR 15.1.B (default) with the incorporation application and pay the prescribed CIPC fee. The current fee schedule is on cipc.co.za; the fee differs by filing type and company classification.
8. Receive the registration certificate. Once CIPC accepts the filing, a Notice of Incorporation is issued with a unique company registration number, and the MOI becomes a public document on the CIPC register.

What Goes In a Customised MOI (and Why Each Clause Matters)

A well-drafted customised MOI addresses each of the following topics, in the order CIPC expects in Form CoR 15.1.A.

• Company name and reserved name. Reserved with CIPC on Form CoR 9.1 before filing; the MOI must reflect the reserved name and the enterprise number once allocated.
• Company type and main object. For an NPC, the main object binds the company to apply its assets and income to that purpose.
• Share capital and classes. For a profit company, the number of authorised shares, the classes (ordinary, preference, redeemable), and the rights attaching to each (dividends, voting, capital on winding up).
• Directors. Number, appointment, removal, remuneration, and powers, including any board committees.
• Shareholders’ meetings and resolutions. Quorum, ordinary vs special resolution thresholds (not lower than the Act’s 75% for special resolutions), notice periods, and round-robin written resolutions.
• Amending the MOI. The procedure for shareholders to amend the document — the Act permits it but requires a special resolution and CIPC filing.
• Ring-fencing provisions. Common in private companies: share-transfer restrictions (pre-emptive rights, right of first refusal), drag-along and tag-along clauses, and the relationship between the MOI and any shareholders’ agreement.

The Commercial Law practice at Burger Huyser Attorneys drafts each clause against the specific facts of the founding shareholders — there is no template that fits a two-founder consulting firm the same way it fits a ten-shareholder manufacturing group.

Common Drafting Mistakes and What They Cost

• Borrowing business-formation language from another jurisdiction. UK and US “Articles of Incorporation” or “Bylaws” templates do not always map to the SA Act; clauses that override the Act are void.
• Forgetting the NPC Schedule 1 provisions. An NPC without the Item 1 of Schedule 1 clauses is non-compliant and directors may be unable to defend themselves against statutory duties.
• Setting the special-resolution threshold below 75%. The Act sets the floor at 75% of voting rights; an MOI that drops this is void.
• Putting private shareholder arrangements in the MOI. The MOI is a public document on the CIPC register; confidential commercial terms belong in a shareholders’ agreement.
• Failing to file the amended MOI after a special resolution. Amendments only take effect once filed with CIPC; until then the old MOI remains binding.

The Role of the Companies Act and How It Interacts with the MOI

The Companies Act 71 of 2008 is the default set of rules. The MOI can add to, vary, or substitute the Act’s defaults — but it cannot reduce the protections the Act gives to shareholders or directors. Where the MOI is silent, the Act applies automatically; where it contradicts the Act, the Act prevails and the inconsistent MOI clause is void. Section 15 governs the effect of the MOI; section 16 governs its alteration; Schedule 1 sets the default MOI for profit companies and the mandatory provisions for non-profits.

Confirming You Are Filing Under the Current Act

The Companies Act 71 of 2008 came into force on 1 May 2011; any reference to a “Memorandum and Articles of Association” or the old Companies Act 61 of 1973 indicates outdated material. CIPC’s website is the canonical source for current filing fees, prescribed forms, and name-reservation procedures.

Frequently Asked Questions

How long does it take to create and register an MOI in South Africa?

A clean incorporation with a default MOI typically takes one to three working days at CIPC once the forms and fee are lodged. A customised MOI that includes review, drafting, and specific clauses usually takes one to two weeks before filing, with CIPC processing time on top.

Do I need a lawyer to draft an MOI, or can I do it myself?

A South African company is not legally required to use a lawyer — a customised MOI can be drafted by the incorporators and filed on Form CoR 15.1.A. The practical question is whether the language is consistent with the Companies Act 71 of 2008; any inconsistent clause is void, and director liability attaches to breaches.

What’s the difference between an MOI and a shareholders’ agreement?

The MOI is the company’s public constitutional document, filed with CIPC. A shareholders’ agreement is a private contract covering commercial arrangements the founders do not want disclosed — drag-along and tag-along rights, dividend policy, deadlock procedures, and dispute resolution. The MOI governs the company; the shareholders’ agreement governs the relationship between shareholders.

Does an MOI need to be updated if the company changes?

Yes — any change requires a special resolution (75% of voting rights) and a CIPC filing on Form CoR 15.2. Common triggers include a new share class, a change in director-appointment rules, a transfer restriction, or a change in the main object. Until the amendment is filed, the old MOI remains binding.

How much does it cost to file an MOI with CIPC?

The filing fee is set by CIPC and changes from time to time; the current schedule is on cipc.co.za. The fee differs for Form CoR 15.1.B, Form CoR 15.1.A, and Form CoR 15.2.

Can a non-profit company use the default MOI?

No — there is no default MOI for non-profit companies. An NPC must file a customised MOI that includes the Item 1 of Schedule 1 provisions: the main object, the non-distribution of income to members, the application of assets to the object, and the winding-up rules. An NPC that omits any of these is non-compliant.

If you are setting up a South African company and need a Memorandum of Incorporation drafted, reviewed, or filed with CIPC, Burger Huyser Attorneys’ Commercial Law practice can take the file from name reservation through to incorporation. The firm drafts customised MOIs for profit companies with multiple share classes, transfer restrictions, or special governance arrangements, and the mandatory Schedule 1-compliant MOI for non-profit companies. Contact the Linden/Randburg head office on 011 888 0246 (after-hours 061 516 6878) or visit 49 First Avenue, Linden, Randburg, 2195, Monday to Friday, 7:30am to 4:30pm, to set up a first consultation. Burger Huyser Attorneys carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and is a multi-specialist firm with branches across Gauteng.