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Sole interest - responses

19 March 2009

From Pieter Pretorius

"With the greatest respect, this article does not take into account the provisions of sub sections 29 (3)(c), (d) & (e).of the Close Corporations Act.

In terms of these provisions, the executor becomes a/the member nomine officii and is empowered to act on behalf of the close corporation. He may even do so before registration of the amended founding statement, in terms of the provisions of sub section 29(3) (e).

If the close corporation is the registered "owner" as defined in section 102 of the Deeds Registries Act, (not the member of the close corporation as the property would be registered in the name of the close corporation) surely the close corporation may sell its immovable property? It would be represented by the executor acting in terms of the authority cited above."

And Ken Mustard

"I have read the article by Alan West in your issue of the 12th March 2009.

I presume that what is being referred to is the executor causing the close corporation to dispose of its immovable property.

Assuming that to be the position, regard must be had to the provisions of Section 29(2)(c) of the Close Corporations Act which provides that the executor qualifies for membership of a close corporation, Section 29(3) which deals with the registration of the executor in his capacity as such as member and in particular Section 29(3)(e) which acknowledges the power of an executor as from date of his assuming office to represent the member (deceased) in all matters in which the deceased could have acted as a member of the close corporation.

Accordingly, in the case of a sole member the executor would be entitled to cause the close corporation to do any act which the deceased could have done had the deceased been alive and that would include the power to cause the close corporation to sell its immovable property."



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