The 21st Century Company Secretary

2.0  Changing attitudes

The preceding position has evolved over time., In the seminal case of Panorama Developments (Guildford) Limited v Fidelis Furnishing Fabrics Limited 2 QB 711. Lord Denning MR outlined the more recent perceptions towards the company secretary wherein he held in part:

[…] A company secretary is a much more important person nowadays than he was in 1887. He is an Officer of the Company with extensive duties and responsibilities. This appears not only in the modern Companies Acts, but also in the role which he plays in the day-to-day business of companies.

He is no longer a mere clerk. He regularly makes representations on behalf of the company and enters into contracts on its behalf which come within the day-to-day running of the company’s business […] such as employing staff, and ordering cars.

CA 2017 now enumerates the responsibilities of a Company Secretary which relates to corporate governance and company law compliance:

The eligibility of a Company Secretary under CA 2017 is set out under s 82(5) which provides as follows:

A person shall be eligible to be a company secretary if he is a resident in Zambia and be either (i) a legal practitioner, a chartered accountant or a member of the Chartered Institute of Secretaries [CIoS].

The effect of this amendment is that only individuals falling within the aforementioned categories can be Company Secretary. This excludes any other individuals that are neither Legal Practitioners, Chartered Accountants nor Members of the CIoS from legally occupying the position of company secretary.

Further, in terms of s 84 of CA 2017, a body corporate may be appointed to hold the office of Company Secretary.

Nevertheless, the qualifications relating to who can be a Company Secretary as set out under s 82(5) of CA are inapplicable to small private companies. That this exception is made is based on the spirit of the law which is meant to encourage rather than stifle the setting up of companies that may not have the resources of a secretary with qualifications in terms of s 82(5).

It is worth noting that s 83 of CA 2017 sets out the responsibilities of a company secretary in the following terms:

A company secretary is responsible for—

1. providing the directors, collectively and individually, with guidance as to their duties, responsibilities and powers;
2. informing the board of directors on—
   1. legislation relevant to or affecting the meetings of members and the board;
   2. the reports relating to the operations of the company; and
   3. submission of documents to relevant authorities, as required by statute, as well as the implications of failure to comply with such requirement;
3. ensuring that minutes of the members’ meetings and of the meetings of the board of directors are properly recorded and registers are properly maintained;
4. ensuring that the company maintains and updates information on the beneficial ownership of all the shares of the company and their associated voting rights;
5. ensuring that the company is in compliance with this Act in relation to lodging of documents with the Registrar; and
6. bringing to the attention of the board of directors any failure on the part of the company or a director to comply with the articles or this Act