In Tanzania, The Companies Act No.12 of 2002 is the law that stipulates the provisions regarding regulation and the control of companies. When companies are incorporated, they come into existence for a particular purpose. This purpose is executed and carried out by individuals, as mandated under The Companies Act, who carry out these activities in conformity with their statutory duty.
One of the mandatory requirements during incorporation of the company is the appointment of the company secretary, as authorized under section 14 of The Companies Act. This person is appointed by directors of the company who must take reasonable steps during appointment to ensure that this person has prerequisite knowledge and experience to discharge the functions of the secretary of the company envisaged.
The Companies Act, under section 187, stipulates that before an appointee embarks on the functions of company secretary, directors of the company must have taken reasonable steps to ensure that the same has prerequisite knowledge and experience. The Companies Act, however, does not stipulate the qualifications and functions for the company secretary.
In some jurisdictions like Mauritius and South Africa, the law, for the purpose of corporate governance, stipulates clear qualifications and functions for the company secretary. However, The Companies Act No.12 of 2002 is not clear about these qualifications and functions, and due to the lack of this clarity, the Act invites ambiguity. It is yet unclear whether section 187(2) of the Companies Act is to be interpreted as having exhausted the qualifications for the company secretary as a person with “requisite knowledge and experience”.
In today’s business environment, practice, and at common law particularly, a company secretary’s functions are primarily ministerial and administrative, rather than managerial. In compliance with the Act, the secretary is mandated to discharge general and statutory functions for the company, including ensuring that the company complies with the statutory requirements of The Companies Act, and conforms to the Articles of Association.
The general functions of a company secretary include his or her presence at all meetings of the company and of the directors. In these meetings, his or her functions include issuing notices of the meetings, making proper minutes of meeting proceedings and conduct all correspondences with the shareholders. He or she is also in charge of the books of the company i.e. the register of directors and members of the company, the register of debentures, and making all necessary returns to the registrar of companies like the filing of annual returns, change of address and inform the Registrar of Companies about any changes that have taken place at a particular period in the company through prescribed forms to wit change of directors or members and the like.
The company secretary statutory functions are imposed in a wide range but would include the following:
- Signing of annual returns
- Creating directors reports on behalf of the board
- Completing statutory forms as prescribed by the registrar of companies
- Prepare the company register
- Prepare the register of members, directors, secretary and charges
- Monitor compliance to the company’s Memorandum and Articles of Association
- Monitor compliance to all other legal requirements under The Companies Act
- Ensure the safe custody and proper use of the common seal of said company
- Issue shares certificates to all shareholders.
It is clear that the company secretary’s functions and duties are numerous and are to be construed from the legal avenues. It can be observed that in some jurisdictions the qualifications for a person capable of executing the position of company secretary are defined as possessing the following qualifications:
- Must have held for three years the position of a company secretary
- He or she is a member of the Institute of Chartered Secretaries and Administrators, or a member of the Institute of Chartered Management Accountants, or Chartered Association of Certified Accountants
- A qualified lawyer
- He or she is a person who appears to the directors to be capable of holding the office, having past experience of a similar position.
It suffices to say that the duties and functions of the company secretary are legal and require a legal professional with the understanding of The Companies Act provisions when executing secretarial functions for the company. Corporate governance brings to the management accountability actions, hence the need for a secretary to effect statutory compliance functions for the company. These functions are designed to protect the shareholders and other authorized officers of the company when carrying out their activities to achieve company objectives for which purpose the companies were formed.
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