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