Shareholders’ Agreement Attorneys in Benoni

A shareholders’ agreement (SHA) is a private contract governing the relationship between a company’s shareholders and, usually, the company itself. It supplements the Memorandum of Incorporation (MOI), but section 15(7) of the Companies Act 71 of 2008 makes any provision inconsistent with the Act or MOI void to the extent of that inconsistency.

Burger Huyser Attorneys drafts, reviews and amends shareholders’ agreements through its Commercial Law and Contracts practice. Benoni-area clients can use the firm’s Bedfordview branch as the closest listed intake office, with Alberton as an alternative.

Why Engage a Specialist Shareholders’ Agreement Attorney in Benoni

An SHA turns a commercial understanding into enforceable rules on funding, voting, dividends, transfers, deadlock and exit. Those rules must work with the MOI rather than compete with it. Specialist review is particularly important where the structure involves different share classes, B-BBEE ownership, family trusts, external investment or company-funded transactions.

• Commercial terms remain in a private agreement while the MOI records the company’s public governance framework.
• Transfer, voting and appointment rights are checked against the Act and MOI before drafting.
• Tax, B-BBEE and financial-assistance issues are identified for specialist input where required.
• Execution and future deeds of adherence are planned so incoming shareholders can become parties.

Burger Huyser’s established Commercial Law and Contracts practice provides the contract-drafting and review capability this work requires.

What the Service Covers (Scope of Engagement)

Stage	Work completed
Structuring consultation	Confirm the company, shareholders, trustees, share classes, funding arrangements and negotiated deal points.
Drafting or review	Prepare an agreement or review a counterparty draft for gaps, ambiguity and unacceptable risk.
MOI consistency	Compare transfer, voting, class-right and director-appointment terms; identify any MOI amendment that should be filed with CIPC.
Special structures	Tailor provisions for joint ventures, investors, B-BBEE ownership, vesting, lock-ins, trusts and shareholder loans.
Execution	Coordinate signatures, electronic execution where legally appropriate, deeds of adherence and transaction-related documents.

The Statutory Framework: How the SHA Fits with the Companies Act and the MOI

There is no separate “Shareholders’ Agreements Act”. Contract law applies, while the Companies Act controls company-law matters.

Provision	Practical significance
Section 15(7)	The SHA must be consistent with the Act and MOI; an inconsistent provision is void only to the extent of the inconsistency.
Sections 36–37	Authorised share classes and their preferences, rights and limitations must be addressed through the MOI framework. The SHA may supplement but cannot replace it.
Section 65	An ordinary resolution requires more than 50% and a special resolution at least 75% of voting rights exercised by default. The MOI may alter thresholds within statutory limits, including the required 10-percentage-point margin.
Sections 44–45	Where the relevant form and recipient of financial assistance fall within these sections, a qualifying special resolution, board solvency-and-liquidity assessment, fair and reasonable terms, and MOI compliance may be required.
Section 163	A shareholder or director may seek court relief for oppressive or unfairly prejudicial conduct or abuse of the company’s separate juristic personality.
Section 164	Qualifying dissenting shareholders may claim fair value in specified transactions or materially adverse class-right amendments, but must follow strict objection, voting and demand procedures.
Section 218	Potential civil liability for statutory contraventions is fact-sensitive and should not be treated as an automatic damages remedy for every dispute.

Key Clauses That Must Be in Every SHA

• Share structure: issued shares, authorised classes, founder vesting and alignment with the MOI.
• Voting and reserved matters: decisions needing enhanced consent beyond statutory or MOI thresholds.
• Dividend policy: the decision-making process, lawful distributions and any agreed commercial formula.
• Transfers: pre-emptive rights, rights of first refusal, tag-along and drag-along mechanisms, and adherence by new shareholders.
• Deadlock: escalation, mediation, expert determination or a carefully designed buy-sell mechanism, especially for 50/50 companies.
• Exit and valuation: valuation method and consequences of death, incapacity, insolvency, breach or a proposed sale.
• Funding: further capital, shareholder loans, interest, repayment priority and possible conversion into equity.
• IP, confidentiality and restraint: ownership of business IP and proportionate protection of confidential information and goodwill.
• Disputes: a staged route from negotiation to mediation and, if selected, arbitration under stated rules, seat and governing law.

Special Considerations for BEE Shareholding and Family Trusts

Structure	Drafting focus
B-BBEE ownership	Exercisable voting rights, economic interest and net value must reflect the applicable Codes in substance. Funding, vesting, lock-in and dividend terms should not undermine the measured ownership arrangement.
Family trust	Section 7C of the Income Tax Act 58 of 1962 may deem interest forgone on certain low-interest or interest-free connected-person funding to a trust—or in defined circumstances a trust-linked company—to be a donation. Tax advice is essential.
External investor	Board representation, information rights, anti-dilution protection, preferences, exit rights and any sections 44 or 45 financial assistance must be negotiated together.

What to Look for When Choosing a SHA Attorney

• Working knowledge of sections 15, 37, 44, 45, 65, 163, 164 and 218 of the Companies Act.
• A combined MOI and SHA review rather than template-only drafting.
• Experience with transfer, deadlock, valuation, restraint, B-BBEE and trust-related provisions.
• A clear scope, responsible use of tax or B-BBEE specialists, and a written fee estimate after reviewing the structure.

Burger Huyser’s Commercial Law and Contracts practice includes shareholders’ agreement drafting and review within its confirmed service scope.

Practical Considerations: Cost, Timeline, What to Bring

Question	Practical answer
Cost	There is no universal tariff. Burger Huyser quotes per matter after assessing the parties, structure, negotiations and related documents.
Timeline	A straightforward file may move from instructions to signature in several weeks; complex negotiations, B-BBEE funding or trust structures usually require longer.

Bring the following to the structuring consultation:

• the current MOI and securities register extract;
• any existing SHA, term sheet or investment agreement;
• a director and shareholder organogram;
• shareholder-loan and funding details;
• relevant B-BBEE documents; and
• trust deeds and trustee resolutions where a trust holds shares.

Frequently Asked Questions

How much does a shareholders’ agreement cost in South Africa?

There is no universal tariff. Cost depends on the parties, share structure, negotiations, B-BBEE or trust features and related MOI work. Burger Huyser provides a per-matter quote after the structuring consultation.

Is a shareholders’ agreement legally binding in South Africa?

Yes. A properly concluded SHA is a binding contract, but section 15(7) makes any term inconsistent with the Companies Act or MOI void to the extent of that inconsistency. Appropriate electronic signatures may be valid under the Electronic Communications and Transactions Act 25 of 2002.

Do I need a shareholders’ agreement for a (Pty) Ltd?

No statute requires every private company to have one. It is nevertheless valuable where multiple shareholders need tailored rules on funding, transfers, deadlock, confidentiality, dividends and exit.

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

The MOI is the company’s filed constitutional document and binds within the statutory company framework. The SHA is a private commercial contract that supplements—but cannot contradict—the Act or MOI.

Where can I take instructions for a shareholders’ agreement if I am based in Benoni?

The supplied service brief identifies Burger Huyser’s Bedfordview branch as the closest listed intake office, with Alberton as an alternative. Confirm the appropriate office and consultation arrangements when booking.

How does the firm handle BEE or family-trust shareholding in an SHA?

The agreement is tailored to the relevant ownership, voting, economic-interest, net-value, funding and trust-loan mechanics. Tax or B-BBEE verification input is obtained where specialist advice is required.

If you are establishing, restructuring or investing in a Benoni-area company, Burger Huyser Attorneys can draft or review the shareholders’ agreement and assess its consistency with the MOI. Contact the Bedfordview branch at 45A Florence Avenue, Bedfordview, Johannesburg, 2008 on 011 201 7190. The Alberton branch at 28 Nelson Mandela Avenue, Randhart, Alberton, 1449 is available on 011 439 3990 as an alternative intake point. The firm has a 4.8/5 average from 250+ Google reviews and was named Commercial Law Firm of the Year 2025 – South Africa by the 5 Star Lawyers Awards.