A person is guilty of an offence in terms of the Companies Act N0. 71 of 2008 (“Act“) if the person:

• is a party to the falsification of any accounting records of a company;
• with a fraudulent purpose, knowingly provided false or misleading information in any circumstances in which the Act requires the person to provide information or give notice to another person;
• was knowingly a party to an act or omission by a company calculated to defraud a creditor or employee of the company, or a holder of the company’s securities, or with another fraudulent purpose; or
• is a party to the preparation, approval, dissemination or publication of a prospectus or a written statement that contains an “untrue statement”.

It is an offence to fail to satisfy a compliance notice issued in terms of the Act:

• But no person may be prosecuted for such an offence in respect of a particular compliance notice if the Commission or Panel, as the case may be, has applied to a court for the imposition of an administrative fine in respect of that person’s failure to comply with that notice;
• A person who contravenes the general restrictions on offers to the public and, if that person is a company, every director or prescribed officer of the company who knowingly was a party to the contravention, is guilty of an offence; and liable to any other person for any losses sustained as a consequence of that contravention.

Any person convicted of an offence in terms of the Act, is liable:

• in the case of a contravention of a breach of confidence and false statements, reckless conduct and non-compliance, to a fine or to imprisonment for a period not exceeding 10 years, or to both a fine and imprisonment; or
• in any other case, to a fine or to imprisonment for a period not exceeding 12 months, or to both a fine and imprisonment.

Despite anything to the contrary contained in any other law, a Magistrate’s Court has jurisdiction to impose any penalty provided for as indicated above.

29 July 2011