What Does MOI Includes in South Africa?

A Memorandum of Incorporation (MOI) is the constitutional document of every company incorporated under the Companies Act 71 of 2008, and it sets out the rules that govern the company’s internal affairs, the rights and duties of its directors and shareholders, and the boundaries within which the company operates. Section 15 of the Companies Act sets the minimum content, any provision in an MOI that conflicts with an unalterable provision of the Act is void to the extent of that conflict, and the document must be filed with the Companies and Intellectual Property Commission (CIPC) on incorporation and on every subsequent amendment.

What an MOI Is and Why It Matters

An MOI is the constitutional document of a company incorporated under the Companies Act 71 of 2008; it functions in relation to the company much as a constitution functions in relation to a country. Under section 15(6), the MOI binds the company, each of its directors, and each of its shareholders as if each had signed it, so its terms are not optional in practice — they govern conduct from boardroom decisions to share transfers.

Three practical consequences follow from that binding status. First, the MOI is a public document: it is filed with CIPC and is available on the CIPC enterprise register against the company’s registration number, so any third party dealing with the company can inspect the rules the company has agreed to operate under. Second, the MOI does not stand alone — it must be read alongside the Companies Act itself, the company’s Shareholders’ Agreement (if one exists), and any rules the board has made under section 15(3) to (5). Third, where there is a conflict, the Act prevails: section 1(5) and the unalterable-provisions rule mean that any MOI clause inconsistent with the Act is void to the extent of that inconsistency.

The Legal Framework: Companies Act 71 of 2008

The Companies Act 71 of 2008 governs every company incorporated in South Africa from 1 May 2011 onwards and is administered by the Companies and Intellectual Property Commission (CIPC), which sits within the Department of Trade, Industry and Competition. Companies incorporated under the previous Companies Act 61 of 1973 originally operated under a “Constitution” or “Founding Statement” and were required to convert or align those documents with the new regime during a transitional window that has since closed.

Section	Function in the MOI regime
Section 13	Sets out the categories of companies that may be incorporated (profit and non-profit) and the type-specific requirements that the MOI must reflect
Section 15	Content, effect, and binding nature of the MOI — what it must and may contain, and how it is amended
Section 16	Effect of incorporation and the automatic application of the Act’s alterable provisions in the absence of an alternative
Section 17	Pre-incorporation contracts and the status of actions taken before registration
Section 22	Distinguishes alterable from unalterable provisions of the Act — the rule that determines what an MOI may lawfully override

What an MOI Must Contain (Mandatory Provisions)

Section 15(1) requires that every provision of an MOI be consistent with the Companies Act, and section 15(2) lists what an MOI must and may include. Read together, the following matters are mandatory and cannot be omitted from a compliant MOI:

• The company’s name and registration number, as registered with CIPC
• Whether the company is a profit company (including state-owned and personal liability companies) or a non-profit company, with the relevant category marked in accordance with section 8
• The company’s main object, or a statement that the company has unrestricted objects (the default position under the Act)
• The number of directors and any alternate directors, together with any minimum and maximum thresholds the company adopts
• The issue of securities — the classes of shares, the voting rights attached to each class, and any restrictions on transfer
• Procedures for the appointment and removal of directors, including whether shareholder approval is required
• Quorum requirements for director and shareholder meetings
• Financial reporting and distribution restrictions applicable to the company
• Notice periods for meetings and the general conduct of meetings
• The circumstances in which the company may be wound up other than by court order

What an MOI May Contain (Optional Provisions)

Beyond the mandatory list, an MOI may include any provision that the Act does not otherwise deal with, that alters an alterable provision of the Act, or that imposes a higher standard than the Act requires. In practice, optional provisions are where most of the bespoke governance work happens:

• Provisions that limit, extend, or otherwise vary the alterable provisions of the Companies Act
• Pre-emption rights on share transfers, together with drag-along and tag-along clauses that control exit and entry
• Prohibitions or restrictions on the issue of shares to non-residents — a consideration in many South African transactions because of exchange-control implications
• Reserved matters that require a higher shareholder vote than the Act’s default, locking strategic decisions behind a supermajority
• Procedures for the appointment, remuneration, and removal of directors that differ from the Act’s defaults
• Rules for the conduct of shareholder meetings — electronic participation, written resolutions, and proxy formalities
• Indemnification of directors beyond the Act’s defaults, subject to the unalterable core of section 78

What an MOI Cannot Contain (Unalterable Provisions)

Section 22 and the related sections of the Act draw a sharp line between provisions the MOI may alter and provisions it cannot. A clause in an MOI that purports to override an unalterable provision of the Act is void to the extent of the conflict — the MOI is read as if the offending words had never been there, and the directors and shareholders remain bound by the Act’s rule. Examples of provisions the Act treats as unalterable include the director’s duty to act in the best interests of the company, the prohibition on reckless trading, the limits on financial assistance in certain circumstances, and the requirement that every company maintain a securities register.

How an MOI Differs from a Constitution and a Shareholders’ Agreement

Two related documents sit alongside an MOI in most South African companies, and confusing them is one of the most common practical errors searchers in this space make.

Document	What it is	Whom it binds	Public or private
Memorandum of Incorporation (MOI)	Constitutional document of the company under the Companies Act 71 of 2008	The company, its directors, and all shareholders	Public — filed with CIPC
Constitution	Constitutional document under the old Companies Act 61 of 1973	The company, its directors, and all shareholders	Public — on the company file
Shareholders’ Agreement (SHA)	Private contract between some or all shareholders	Only the signatories	Private

The Companies Act 71 of 2008 effectively replaced the Constitution with the MOI for new companies, but legacy constitutions still operate under the transitional provisions and may still need to be converted or brought into line with the current Act. The MOI and an SHA frequently co-exist: the MOI governs the company and all shareholders publicly, while the SHA governs the relationship among its signatories privately. Where there is a conflict between the two, the MOI generally prevails as between the company and a third party, so the standard advice is to mirror any term the parties want to bind incoming shareholders into the MOI rather than leaving it only in the SHA.

Amending an MOI

An MOI is not a once-off document. Once the company changes — a new investor joins, a share class is restructured, a director mandate is widened or narrowed — the MOI has to move with it. The amendment process has three moving parts:

1. Pass a special resolution of the shareholders (or any higher threshold the MOI itself requires for the specific change).
2. File the amended MOI with CIPC within 10 business days of the resolution being passed.
3. Lodge a copy of the amended MOI with the filing so CIPC can place the current text on the enterprise register.

Changes that affect the company’s capital structure — for example, amendments to the rights of a class of shares or the creation of a new class — may also require a separate CIPC filing or supporting documents, such as an updated securities register. Failure to file an amended MOI is a contravention of the Act, and the company remains on the public register as carrying its un-amended text, which can leave third parties dealing with the company on the wrong footing.

Common Mistakes When Drafting an MOI

Most MOI disputes that reach a lawyer’s desk have one of a small number of root causes:

• Copy-pasting a template without checking it against the Act’s current defaults — older templates reference default rules that the Act has since changed.
• Including clauses that purport to override unalterable provisions, which leaves the company thinking it has a rule it does not in fact have.
• Failing to align the MOI with the company’s Shareholders’ Agreement, so that the public document and the private contract say different things about the same matter.
• Omitting procedural detail — quorum, notice periods, written resolutions — that the Act’s defaults would otherwise fill, leaving gaps the parties did not intend.
• Not filing the amended MOI after a special resolution, so the public register carries stale text.
• Using a non-standard share-class structure without considering the tax and exchange-control implications.

When Legal Help With an MOI Makes Sense

The Companies Act does not require a lawyer to draft an MOI, but the document is binding under statute and a conflict with an unalterable provision of the Act is void — which is why most companies use a lawyer whenever the document has to do more than replicate the Act’s defaults. Legal input is worth engaging for the following situations:

• Incorporating a new company with a non-standard share structure — preference shares, multiple classes, or participation rights.
• Amending an MOI to accommodate a new investor or a change in share rights.
• Resolving a dispute between shareholders or directors where the MOI is silent and the Act’s default produces an outcome the parties did not bargain for.
• Bringing legacy Constitution-era provisions into line with the Act.
• Reviewing an MOI drafted on a DIY template before filing, especially where the document will be relied on by an incoming investor or financier.

Burger Huyser Attorneys’ Commercial Law and Contracts practice, led by specialist consultant J’Retha van Rensburg, handles MOI drafting and amendment from the firm’s head office in Linden, Randburg, and the same practice covers shareholders’ agreements, share-class structuring, and the conversion of legacy constitutional provisions into an MOI compliant with the current Act.

Frequently Asked Questions

Is an MOI legally required for every South African company?

Yes — every company incorporated under the Companies Act 71 of 2008 must have an MOI, which is filed with CIPC at incorporation and on every subsequent amendment. Without a filed MOI, the company cannot be registered and remains in default of the Act.

What is the difference between an MOI and a Shareholders’ Agreement?

An MOI is a public document filed with CIPC that binds the company, its directors, and all shareholders; a Shareholders’ Agreement is a private contract between some or all shareholders that governs their relationship among themselves. The two often overlap, but where the MOI applies to the whole company, the SHA applies only to its signatories.

Can an MOI be amended after the company is registered?

Yes — an MOI can be amended by special resolution of the shareholders (or a higher threshold the MOI itself requires), and the amended MOI must be filed with CIPC within 10 business days. Without the filing, the amendment is not effective against third parties.

Does an MOI need to be drafted by a lawyer?

No law requires a lawyer to draft an MOI, but the document is binding under statute and any provision that conflicts with an unalterable provision of the Companies Act is void to the extent of that conflict. Most companies use a lawyer for non-standard share structures, shareholder disputes, or amendments tied to an investment round.

Where can I see a company’s MOI?

A company’s MOI is a public document filed with CIPC and is available through the CIPC enterprise register against the company’s registration number. Anyone can request a copy on payment of the prescribed CIPC fee.

If you are incorporating a new company, drafting an MOI for a non-standard share structure, or amending an existing MOI to reflect a shareholder change, Burger Huyser Attorneys’ Commercial Law team can take the instruction through from drafting to CIPC filing. The firm is based at 49 First Avenue, Linden, Randburg (011 888 0246 / 061 516 6878, Monday to Friday 7:30am to 4:30pm), and the relevant specialist consultant is J’Retha van Rensburg. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified) and handles commercial work across all Gauteng branches.