MEMORANDUM OF INCORPORATION

A Memorandum of Incorporation (MOI) is the constitutional document every company incorporated in South Africa is required to file with the Companies and Intellectual Property Commission (CIPC) under section 15 of the Companies Act 71 of 2008. It sets out the rights, duties and responsibilities of shareholders, directors and prescribed officers, and operates as the supreme governing instrument of the company — any shareholders’ agreement that conflicts with it is subordinate. Amendments require a special resolution supported by at least 75% of the voting rights exercised, although minor patent errors can be corrected by board resolution alone.

The MOI is mandatory for every company incorporated after 1 May 2011, and it continues to bind companies that existed before that date once their transitional period lapsed. For South African founders, directors and shareholders, understanding its content, scope and amendment mechanics is the difference between a properly governed company and one whose rules sit in default statute they never consciously chose. Burger Huyser Attorneys’ Commercial Law / Contracts practice fields this work across the firm’s Gauteng branches, with specialist consultant J’Retha van Rensburg leading the drafting, review and amendment work alongside the firm’s broader company-registration service.

What the Memorandum of Incorporation Is

The MOI is the constitutional document of a South African company under the Companies Act 71 of 2008. It sets out the rules agreed by shareholders for the management and maintenance of the business, and is required of every company incorporated after 1 May 2011. Pre-existing companies were given a transitional period to align their founding documents with the new Act; once that period ended, CIPC could issue compliance notices requiring alignment.

Two features of the MOI shape how it is used in practice. First, it is a public document — any member of the public can request a copy from the CIPC. Second, it is the supreme governing instrument of the company: any shareholders’ agreement or director action that conflicts with it is subordinate to it.

The MOI is legally binding in five specific relationships:

• Between the company and each shareholder.
• Between or among the shareholders themselves.
• Between the company and each director.
• Between the company and each prescribed officer.
• Between the company and each person serving on the audit committee or a board committee in the exercise of their functions.

Burger Huyser Attorneys treats the MOI as the foundation on which any associated shareholders’ agreement is later built.

Standard vs Customised MOI

South African founders have two practical routes when incorporating a private company.

Feature	Standard MOI (CoR 15.1A)	Customised (non-standard) MOI (CoR 15.1C)
Source	Provided by law (CIPC form CoR 15.1A — the standard short form for private companies).	Drafted by the founders (or their attorney) and attached to the registration application.
Drafting effort	None — integrated into the registration process.	Required — CIPC itself notes this “may require the assistance of a legally qualified person or someone with company secretarial knowledge.”
Filing channels	Online, at a CIPC self-service terminal, or through a collaborating bank.	Filed alongside the registration application via the same CIPC channels.
Governance flexibility	Statutory defaults apply on every matter the founders leave untouched.	Founders can impose conditions, waive defaults (such as the audit requirement), define share classes, set director-removal thresholds, and build a transfer-restriction regime.
Best suited to	Straightforward, owner-managed private companies with a single shareholder or aligned shareholders.	Companies with multiple shareholders, different share classes, bespoke appointment/removal rules, or a specific exit or transfer regime.

The decision point is whether the statutory defaults will produce the governance outcome the founders actually want. A customised MOI is the right choice whenever the founders’ intended governance differs in any meaningful way from what the Act supplies by default.

What an MOI Must Contain

The Companies Act 71 of 2008 and its regulations set out the minimum content for an MOI. A compliant MOI addresses each of the following matters:

• Company details — name, incorporation date, registration number, and type (private, public, non-profit, state-owned, or personal liability).
• Rights, duties and responsibilities of directors, shareholders and other stakeholders.
• Board of directors — minimum and maximum number of directors, their powers and duties, and the procedures for appointment, removal and meetings.
• Share capital and share classes — authorised capital, the classes of shares (ordinary, preference and any others), voting rights, dividend rights, and rights on repayment or winding up.
• Shareholder meetings — rules for annual general meetings and other shareholder meetings, voting and proxy procedures, and the required majority for ordinary versus special resolutions.
• Corporate actions — rules for issuing new shares, transferring shares, and declaring dividends.
• Additional provisions for non-profit companies — specifically how assets are to be dealt with on dissolution.

Alterable and Unalterable Provisions

Every provision in the Companies Act falls into one of three categories, and understanding the categories is the only practical way to draft or review an MOI.

Category	What it does	What the MOI may do
Unalterable provisions	Mandated by the Act to protect shareholders, creditors and other stakeholders.	Impose more onerous requirements only — never weaken or negate the provision.
Alterable provisions	Default rules in the Act that govern how the company operates unless the MOI says otherwise.	Modify, replace or negate the default — within the bounds the Act permits.
Provisions on matters not addressed by the Act	No statutory default exists — the Act is silent.	Add any provision, provided it is consistent with the Act as a whole.

Practical illustration. The Act sets a minimum 10-day notice period for a shareholders’ meeting (unalterable). The MOI may require 15 days, but it cannot reduce it to 5. Conversely, the Act allows directors to be removed by an ordinary resolution (more than 50% of votes exercised) — an alterable default. The MOI may raise that threshold to a special resolution (at least 75%), a binding tightening, but it cannot drop it below the statutory baseline.

How the MOI Interacts with Shareholders’ Agreements

The MOI is supreme. A shareholders’ agreement that conflicts with the MOI is unenforceable to the extent of the conflict. In practice, the two documents are usually drafted to do different jobs:

• The MOI governs the company’s relationship with the world — its directors, prescribed officers, audit committee and third parties.
• The shareholders’ agreement governs the commercial relationships between the shareholders themselves — drag-along and tag-along rights, pre-emption on share transfers, dividend policy, deadlock procedures, and similar private arrangements.

A well-drafted MOI and a well-drafted shareholders’ agreement should be read together. Where they conflict, the MOI wins — which is why Burger Huyser Attorneys treats both reviews as a single workstream for any new company incorporation.

Amending the Memorandum of Incorporation

Most amendments to an MOI require a special resolution — at least 75% of the voting rights exercised at a properly convened meeting. The amendment can be initiated by:

1. The board of directors; or
2. Shareholders holding at least 10% of the voting rights.

The MOI itself may adjust the 75% threshold upward (or, in principle, downward within the bounds of the Act), but the special-resolution concept cannot be abolished. Once passed, the amendment must be filed with the CIPC to be effective against third parties.

Correcting Patent Errors

Minor housekeeping changes do not require a special resolution. A board — or an individual authorised by the board — may correct patent errors in spelling, punctuation, reference, grammar or similar defects on the face of the MOI without going to shareholders. The procedure is:

1. Publish a Notice of Alteration in the manner required by the MOI or the company’s rules.
2. File the notice with the CIPC.

CIPC, or a director or shareholder, may apply to the Companies Tribunal for an administrative order setting aside such a notice — but only on the ground that the alteration goes beyond a genuine patent-error correction. Where there is a genuine dispute about whether the board has overstepped its authority, the Tribunal is the forum where it gets resolved.

Translations and Consolidated Revisions

As MOIs accumulate amendments over years of operation, two issues routinely arise.

• Translations. A company may file one or more translations of its MOI in any official South African language. Each translation must be accompanied by a sworn statement confirming it is a true, accurate and complete translation.
• Consolidated revisions. After multiple amendments, the company may (or CIPC may require it to) file a consolidated revision of the MOI as so altered. The consolidated revision must be accompanied by a sworn statement by a director or a statement by an attorney or notary public confirming it is a true, accurate and complete representation of the MOI as altered to date.

Conflict rule. Where a translated version and a consolidated revision conflict, the translated version prevails — unless the consolidated revision has been ratified by special resolution at a general shareholders’ meeting. The latest CIPC-endorsed version prevails over any other purported version.

Pre-existing Companies and the Transitional Period

Companies incorporated under the old Companies Act 61 of 1973 were given a transitional period to align their founding documents with the Companies Act 71 of 2008. During that period, conflicts between the Act and a pre-existing company’s MOI were resolved in favour of the MOI. After the transitional period ended, CIPC could issue compliance notices requiring alignment with the new Act. This is largely historical, but it still matters whenever a legacy document is being reviewed or reconciled against current CIPC filings.

Need help with a Memorandum of Incorporation? If you are setting up a South African company and need to decide between the CIPC standard MOI and a customised one — or you have an existing company and need to amend, restate, translate or consolidate its MOI — contact Burger Huyser Attorneys’ Commercial Law team on 011 888 0246 or visit the head office at 49 First Avenue, Linden, Randburg, 2195. The firm drafts and reviews MOIs, aligns them with the associated shareholders’ agreement, and handles the CIPC filing layer. Initial consultations are booked through the Linden head office or any of the Gauteng branches (Sandton, Roodepoort, Pretoria, Centurion, Bedfordview, Alberton, Midrand). The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and has been recognised as Commercial Law Firm of the Year 2025 – South Africa at the 5 Star Lawyers Awards.

Frequently Asked Questions

Is a Memorandum of Incorporation the same as a shareholders’ agreement?

No. The MOI is the constitutional, CIPC-filed governing document of the company and is binding on the company, shareholders, directors and prescribed officers. A shareholders’ agreement is a private contract between (usually some or all) shareholders that governs their commercial relationships with one another. Where the two conflict, the MOI prevails.

Do I need a lawyer to draft my MOI?

Not if you are using the CIPC’s standard MOI (CoR 15.1A) for a straightforward private company — it is integrated into the online company-registration process and is filed automatically. If you want to customise the MOI — for example, to remove the audit requirement, set bespoke director-removal thresholds, define different share classes, or build in a specific transfer-restriction regime — CIPC itself notes that this may require the assistance of a legally qualified person or someone with company secretarial knowledge.

Can a director be removed without a special resolution?

Only if the MOI expressly allows it. The default position under the Companies Act is that a director may be removed by an ordinary resolution (more than 50% of votes exercised). The MOI may tighten this by requiring a special resolution (at least 75%), but it cannot lower the threshold below the statutory baseline.

What happens if my MOI is silent on something?

The default alterable provisions of the Companies Act fill the gap. This is why a do-nothing MOI is rarely the right answer for a company with more than one shareholder or non-trivial governance needs — silence means the Act decides.

How do I change my MOI after registration?

Most amendments require a special resolution (at least 75% of voting rights exercised) initiated by the board or by shareholders holding at least 10% of voting rights, followed by filing with the CIPC. Minor patent errors in spelling, punctuation or grammar can be corrected by board resolution alone via a Notice of Alteration filed with the CIPC.

What is the Companies Tribunal, and when would I deal with it?

The Companies Tribunal is the independent statutory body that adjudicates certain company-law disputes under the Companies Act. In the MOI context, CIPC or a director or shareholder can apply to the Tribunal to set aside a Notice of Alteration that purports to correct a patent error but in substance goes beyond that authority. Most companies never deal with the Tribunal — it becomes relevant where there is a dispute over the scope of a board’s power to correct errors.