State-owned Companies: Companies Act, PFMA And King
State-owned companies: Companies Act, PFMAand King III in perspectivePublic Sector Working Group: Position Paper 1
page 2State-owned companies: Companies Act, PFMA and King III in perspectiveDisclaimerThe information contained in this paper, published by PricewaterhouseCoopers (PwC) and the Institute of Directors in Southern Africa(IoDSA), is provided for discussion purposes only and is intended to provide the reader or his/her entity with general information ofinterest. The information is supplied on an “as is” basis and has not been compiled to meet the reader’s or his/her entity’s individualrequirements. It is the reader’s responsibility to satisfy himself/herself that the content meets the individual or his/her entity’srequirements. The information should not be regarded as the rendering of professional advice or the official opinion of PwC, the IoDSAor individual members. No action should be taken on the strength of the information provided without obtaining professional advice.Although PwC and the IoDSA have taken all reasonable steps to ensure the quality and accuracy of the information presented, this isnot guaranteed. PwC, the IoDSA or its members shall not be liable for any damage, loss or liability of any nature incurred, directly orindirectly by whomever and resulting from any cause in connection with the information contained herein.
State-owned companies: Companies Act, PFMA and King III in perspectivepage 1Executive summaryGovernance is essentially about effective leadershipbased on an ethical foundation. Compliance, as anyother business activity, should take place within thecontext of leadership and sound governance principles.ContentsExecutive summary11.Introduction22.Governance universe43.Governance provisions in theCompanies Act, PFMA and King III54.Conclusion185.References20The board of a company has a duty to ensure thatthe company complies with all applicable laws andrules. In addition, the board also has the responsibilityto consider adherence to codes and standards . Allthese compliance responsibilities are very onerousand especially so where the state is involved. This isexacerbated by the fact that different single provisionsin laws, rules, codes and standards cannot be read inisolation, but need to be interpreted in the context ofthe whole compliance universe applicable to an entity.The Companies Act, the PFMA and King III sharemany of the principles of good governance applicableto SOCs. Alignment is possible and should in fact bestrived for in the spirit of the overarching governanceprinciples of accountability, fairness, transparency andresponsibility.
page 2State-owned companies: Companies Act, PFMA and King III in perspectiveWhen attempting to resolve areas of conflicts, it is to benoted that the PFMA prevails. We submit, however, thatthis is only where there are irreconcilable differences. Ifit is for instance a case that the Companies Act has the“more onerous requirement”, then compliance with theCompanies Act is necessary. This will then encompasscompliance with the PFMA.Reconciling the law (which must be adhered to)with governance recommendations (to be appliedvoluntarily) sometimes poses a challenge whenthere are indeed clear contradictions that cannot bereconciled. We submit that it will in these instancesnot be sufficient for the boards of SOCs to washtheir hands off these matters as it is the focal point ofgovernance and bears ultimately responsibility. What isrequired firstly, is that SOC boards play an active rolein advocating changes to bring about amendmentsto enabling legislation that are in line with soundgovernance principles.Secondly, until such changes are effected, SOC boardsshould attempt to work within legislative constraints tobring about a sound governance outcome. For instance,if enabling legislation requires the executive authority toappoint the CEO as opposed to the appointment beingmade by the board (as required by King III), the boardshould actively engage the executive authority on thisissue in order to bring its input to bear on the executiveauthority’s decision as to who to appoint. The boardshould understand that the risk that King III is managingin recommending that the board appoints the CEO,is that there may be confusion around accountabilityand reporting lines if the executive authority makes thisappointment. In recognition of this risk, the board couldmake it very clear in the employment agreement withthe CEO that he or she is accountable and must reportto the board. By being proactive in this way, an SOCboard may then achieve the result that was envisagedby King III despite the fact that it needs to work withinthe constraints of legislation.Other issues that are highlighted in this Position Paperare the following: Practice recommendations contained in King IIIand that are widely adopted by directors set a newbenchmark for directors’ standard of conduct. Whenthe “reasonable director” test is applied by thecourts, this will be taken into account. The fiduciary duties of directors and management ofconflicts of interest are expressed differently in theCompanies Act, King III and the PFMA. However,there is no conflict and all of these provisions shouldbe read together in order to adhere to the higheststandard. The specific PFMA provisions that relate to the roleand functions of the board can all be matched to anappropriate King III principle and SOC boards shouldinterpret the legislation against the wider frameworkof King III. Even though there is a contradiction in thePFMA and the Companies Act on who elects theaudit committee, it does not change the soundgovernance principle that SOC boards should beproactive in ensuring an effective and independentaudit committee. The duties of the audit committee as set out in itsterms of reference should encompass all of theduties contained in the Treasury Regulations, theCompanies Act and King III in order to achieve thehigher governance standard. Although not required in terms of applicablelegislation, an SOC board should have regard to therecommendation in King III that the audit committeeshould base its report concerning the effectivenessof internal financial controls on a documented reviewconducted by internal audit. The audit committee of an SOC should fulfil thewider role in relation to the appointment of an auditoras recommended in King III. Reporting requirements for audit committees aremore extensively provided for in King III than in thelegislation. SOC audit committees should aspire toattain those higher reporting requirements.1. IntroductionIn this Position Paper we will focus specifically onkey laws, rules, codes and standards that concernthe governance of a state-owned company (SOC).The objective of this Position Paper is to highlight toboards of SOCs those areas in which governance andlegislation intersect and to offer a position on howthese varying and sometimes conflicting provisionscould be reconciled. This is done by presenting acomparative analysis of the various provisions that dealwith governance as contained in the Companies Act,No. 71 of 2008 (Companies Act), the Public FinanceManagement Act, No. 1 of 1999 (PFMA) and King III.
State-owned companies: Companies Act, PFMA and King III in perspectiveSOCs are subject to a bouquet of regulations – theirregulatory universe. As the objective of this PositionPaper is to provide a comparison of governanceaspects as contained in the Companies Act, the PFMAand King III, it is necessary to identify which categoriesof entities would be subject to both the Companies Actand the PFMA.The PFMA was promulgated in 1999 and becameeffective on 1 April 2000. The PFMA gave effect tothe provisions in the Constitution of the Republic ofSouth Africa, No. 108 of 1996, relating to national andprovincial spheres of government. The PFMA “adoptsan approach to financial management which focuses onoutputs and responsibilities”.The PFMA established the term “national governmentbusiness enterprise” which is defined in section 1 as anentity which:a. is a juristic person under the ownership control ofthe national executive;b. has been assigned financial and operationalauthority to carry on a business activity;c. as its principle business, provides goods orservices in accordance with ordinary businessprinciples; andd. is financed fully or substantially from sourcesother thani. the National Revenue Fund; orii. by way of tax, levy or other statutory money.All national government business enterprises are bydefinition “national public entities” as described andreferred to in the PFMA, of which some are companiesand some not.page 3The Companies Act, 2008 (Companies Act)established the term “state-owned company” (SOC)which is defined in section 1 as: an enterprise that is registered in terms of this Actas a company, and either—a. falls within the meaning of ‘‘state-ownedenterprise’’ (national government businessenterprise) in terms of the Public FinanceManagement Act, 1999 (Act No. 1 of 1999); orb. is owned by a municipality, as contemplatedin the Local Government: Municipal SystemsAct, 2000 (Act No. 32 of 2000), and isotherwise similar to an enterprise referred toin paragraph (a); SOCs fall within the ambit of the PFMA, whichmeans that they need to comply with additionalprovisions over and above those of the CompaniesAct.In order to limit the range of variances in PFMAprovisions to be used in this comparative analysis,SOCs not listed in schedule 2, 3B and 3D of thePFMA are not considered in this Position Paper,although as a consequence of their legal form, theyare also required to comply with the CompaniesAct. The Companies Act also applies to companiesregulated by the Local Government: MunicipalFinance Management Act, No. 56 of 2003 (MFMA).The MFMA, specifically chapter 10, is based on thesame principles of financial management containedin the PFMA, and is therefore not specifically dealtwith in this Position Paper.
page 4State-owned companies: Companies Act, PFMA and King III in perspectiveThe release of the King Report on Governance for South Africa – 2009 (King III) brought with it significantopportunities for SOCs that embrace good governance. King III brings with it principles and recommendations thatcorrelate with the requirements of the Companies Act and the PFMA.2. Governance universeThe laws, rules, codes and standards that typically impact on SOCs’ governance in South Africa can be depictedschematically:An SOC’s existence is normally based on legislation referred to as “enabling legislation”, which provides forits establishment, control, powers, function and funding. Whilst enabling acts are entity-specific, they are onlyreferred to in this Position Paper but not dealt with in any detail.Chapter 6 of the PFMA, as well as other sections (1-4, 66-70, 76-77, 83-86 and 92-95) apply to public entities thatinclude SOCs. In terms of section 76(4), “the National Treasury may make regulations” dealing with a number ofspecific matters. To this end, the Treasury Regulations (as amended) (issued on 15 March 2005) are relevant andare considered in this Position Paper.The Companies Act applies to all companies, including SOCs.Section 3(3) of the PFMA determines that if any conflict exists between the PFMA and another Act, the PFMAprevails.The interrelationship between the PFMA and the Companies Act is evident from the similarity of its respectiverequirements imposed on directors and the boards of SOCs.However, as a broad statement, it can be argued that the major differences lie in the fact that the PFMA focusesprimarily on aspects of financial management within public entities, while the Companies Act covers mattersin relation to companies that are wider in scope than simply financial management. These areas are discussedbelow.
State-owned companies: Companies Act, PFMA and King III in perspectivepage 53. Governance provisions in the Companies Act, PFMA and King IIIA comparison of selected aspects of the Companies Act, PFMA and King III relevant to SOCs is provided to givesome insight into the issues that need to be reconciled by SOC boards:Companies ActPFMAKing IIICommentSection 49 establishes theaccountability of the board ofan SOC.Principle 2.1 requires that theboard should act as the focalpoint for and custodian ofcorporate governance.When King III is interpretedin relation to SOCs, it can beassumed that whenever thereis reference to “the board”,it should be interpreted asreferring to the accountingauthority established in termsof the PFMA and enablinglegislation.AccountabilitySection 66 determines thatan SOC must have a board,which has the authority toexercise all of the powersand perform any of thefunctions of the SOC exceptif limited by the CompaniesAct or memorandum ofincorporation. The board of anSOC should comprise at leastthree directors.Principle 2.18 states thatthe board should comprisea balance of power with amajority of non-executivedirectors. The majority of nonexecutive directors should beindependent.In terms of the CompaniesAct, the board has the“authority” as stated, whereasthe focus of King III is on“responsibility”, which acts toenhance the authority aspect.The significance of King IIIto the board, acting as thefocal point of governance, isthat boards of SOCs shouldunderstand the specificresponsibilities dealt with inthe PFMA and Companies Actin terms of this governanceprinciple.We submit that the CompaniesAct, PFMA and King III shouldbe read together to achievethe highest standards ofgovernance.
page 6Companies ActState-owned companies: Companies Act, PFMA and King III in perspectivePFMAKing IIICommentAccountabilityFor SOC boards to consider: Is there recognition ofthe fact that ultimateaccountability for whateverhappens in and with theSOC rests with the board? Is there appreciation ofthe fact that a balanceof power protects theboard against the adverseconsequences of thechecks and balances notbeing in place?Standards of directors’ conduct and conflicts of interestSection 76 sets out standardsof directors’ conduct in linewith common duties, namelyto act in good faith and forproper purpose, in the bestinterest of the company andwith the expected degree ofcare, skill and diligence.Directors as defined have thefollowing duties in relation toinformation obtained whileacting in the capacity of adirector: A director may notuse his/her position orinformation obtained inhis/her capacity as adirector to gain advantagefor himself/herself or fora person other than theSOC or its wholly-ownedsubsidiary or knowinglycause harm to the SOCor subsidiary company.The director mustcommunicate to the boardat the earliest opportunity,information that comes tothe director’s attention,unless it is immaterialto the SOC, generallyavailable to the public orknown to other directors,or there is an ethicalor legal confidentialityobligation that prohibitsdisclosure of theinformationSection 50 provides that theboard of an SOC must: Exercise the duty ofutmost care to ensurereasonable protection ofthe assets and records ofthe SOC; Act with fidelity, honesty,integrity and in the bestinterests of the SOC inmanaging the financialaffairs of the SOC; On request, disclose to theMinister responsible forthat SOC or the legislatureto which the SOC isaccountable, all materialfacts, including thosereasonably discoverable,which in any way mayinfluence the decisions oractions of the Minister orthat legislature; and Seek, within the sphere ofinfluence of that board, toprevent any prejudice tothe financial interests ofthe state.Principle 2.14 states thatthe board must always actin the “best interests of thecompany”.The interpretation of thisphrase is elaborated uponand reference is also made tothe two sets of common lawduties of directors, namelyto act with care, skill anddiligence; and to act in goodfaith.Paragraphs 23-25 under thisprinciple deal with directors’conflicts of interest. It is statedthat the personal interests of adirector or people associatedwith that director should nottake precedence over theinterests of the SOC.It is pointed out in King IIIthat certain conflicts are sofundamental that they shouldbe avoided entirely. Otherconflicts are to be managed.It is to be noted that theCompanies Act sets outthe standards of conduct inrelation to individual directors,whereas the PFMA refers tothe duties of the board asa whole. Furthermore, theduties are stated in the PFMAwith a focus on financialmanagement, whereas in theCompanies Act, they centreon fiduciary duties and theduty to act with due care, skilland diligence.The duties outlined in thePFMA do not, in our view,exclude the provisions of theCompanies Act, but shouldrather be seen as adding“specifics” to the overarchingprovisions of the CompaniesAct.
State-owned companies: Companies Act, PFMA and King III in perspectiveCompanies ActPFMAKing IIIpage 7CommentStandards of directors’ conduct and conflicts of interestThe other duties of a directorare to act:A director of the board maynot: In good faith and forproper purpose; In the best interests of theSOC; and With the degree of care,skill and diligence that mayreasonably be expectedof a person who carriesout the same functionsas a director in relationto the SOC and who hasthe knowledge, skill andexperience of that director.Act in a way that isinconsistent with theresponsibilities assignedto the board in terms ofthe PFMA; or Use the positionor privileges of, orconfidential informationobtained as, the boardor a director, for personalgain or to improperlybenefit another person.The obligations of acting in thebest interest of the SOC andof care, skill and diligence ascontemplated in section 3(b)and (c) are satisfied when adirector: Has taken reasonablediligent steps to becomeinformed; Either had no materialpersonal interest in thematter or complied withthe provisions of section75 of the Companies Act inthis regard; and Made or supported adecision and had a rationalbasis for believing, and didbelieve that the decisionwas in the best interests ofthe SOC.The director must disclose tothe board any direct or indirectpersonal or private businessinterest that, that member orany spouse, partner or closefamily member may have inany matter; and withdrawfrom the proceedings of theboard when that matter isconsidered, unless the boarddecides that the member’sdirect or indirect interest in thematter is trivial or irrelevant.The Companies Act providesfor a number of subjectivemeasures to determinewhether directors have metthe required standard ofconduct. A number of phrasesused in section 76 of theCompanies Act highlightthis: “that may reasonablybe expected of a person”;“degree”; “reasonablydiligent steps”; and “rationalbasis for believing”. Thepractices recommended inKing III will (as soon as it hasbecome widely adopted) setthe standard for directors’conduct and will be themeasure for determiningwhether directors’ conducthas met these subjectivestandards as describedin the Companies Act.Directors should thereforeunderstand that althoughKing III contains voluntarypractice recommendations,these could have far-reachingconsequences in determiningwhat is reasonable conductfor directors.For SOC boards to consider: Is there a conflict ofinterest policy in place thatdetails conflict or interestprocedures? If so, is this policy everevaluated to ascertainwhether it achieves itsobjectives? Do directors understandthat the more establishedthe governance practicesrecommended in King IIIbecome, the more likelya court would regardconduct that conforms tothese practices as meetingthe required standard ofcare?
page 8Companies ActState-owned companies: Companies Act, PFMA and King III in perspectivePFMAKing IIICommentStandards of directors’ conduct and conflicts of interestA director may relyon the information,recommendations, reports,etc. of the following persons: Employees of the SOC thatthe director reasonablybelieves to be reliable andcompetent; Legal counsel,accountants or otherprofessionals as tomatters involving skills orexpertise that the directorreasonably believesare matters within thecompetence of that personand to which the personmerits confidence; and A board committee ofwhich the director is nota member unless thedirector has reason tobelieve that the actionsof the committee do notmerit confidence Do boards recognisethat directors whoare appointed asrepresentatives of a partywith an interest in theSOC, pose a potentialfor conflict and is thismanaged by the board?Role and functions of the boardSection 66. (1) provides thatthe business and affairs of acompany must be managedby, or be under the directionof, its board, which has theauthority to exercise all of thepowers and perform any ofthe functions of the company,except to the extent thatthis Act or the company’smemorandum of incorporationprovides otherwise.Section 51 determines that theboard of an SOC must ensurethat it has and maintains:The role and functions of theboard are set out as follows inKing III: Effective, efficient andtransparent systemsof financial and riskmanagement and internalcontrol; Principle 2.1: The boardshould act as the focalpoint for and custodian ofcorporate governance; A system of internalaudit under the controland direction of an auditcommittee complyingwith and operating inaccordance with theTreasury Regulations andthe PFMA;Principle 2.2: The boardshould appreciate thatstrategy, risk, performanceand sustainability areinseparable; An appropriateprocurement andprovisioning systemwhich is fair, equitable,transparent, competitiveand cost effective; Principle 2.3: The boardshould provide effectiveleadership based on anethical foundation; Principle 2.4: The boardshould ensure that theSOC is and is seen to bea responsible corporatecitizen; Principle 2.5: The boardshould ensure that theSOC’s ethics are managedeffectively;The focus on financialmanagement is clear fromthe nature of the generalresponsibilities of theaccounting authority listedin the PFMA. King III caststhe net wider to encompassa wider range of governanceresponsibilities.The specific PFMA provisionscan all be matched to anappropriate principle of King IIIand we submit that the boardsof SOCs adopt this approach.As far as the appointment ofthe chairman of the boardand the CEO is concerned,the enabling legislation oftenprovides that the shareholderor executive authoritymakes these appointments.This contradicts therecommendations of King III.
State-owned companies: Companies Act, PFMA and King III in perspectiveCompanies ActPFMApage 9King IIIComment For SOC boards to consider:Role and functions of the board A system for properlyevaluating all major capitalprojects prior to a finaldecision on the project.The board must take effectiveand appropriate steps tocollect all revenue due tothe SOC; prevent irregularexpenditure, fruitless andwasteful expenditure, lossesresulting from criminalconduct, and expenditurenot complying with theoperational policies of theSOC and manage availableworking capital efficiently andeconomically.The board is also responsiblefor the management andsafeguarding of the assetsand for the management ofthe revenue, expenditure andliabilities of the SOC.The board must comply withany tax, levy, duty, pensionand audit commitments asrequired by legislation.The board must take effectiveand appropriate disciplinarysteps against any employee ofthe SOC who contravenes orfails to comply with a provisionof the PFMA; commits anact which undermines thefinancial management andinternal control system of theSOC; or makes or permitsan irregular expenditureor a fruitless and wastefulexpenditure.The board is responsible forthe submission by the SOCof all reports, returns, noticesand other information toParliament, and to the relevantMinister or Treasury, as maybe required by the PFMA.Principle 2.6: The boardshould ensure that theSOC has an effectiveand independent auditcommittee; Principle 2.7: The boardshould be responsible forthe governance of risk; Principle 2.8: The boardshould be responsible forinformation technology (IT)governance; Principle 2.9: The boardshould ensure that theSOC complies withapplicable laws andconsiders adherence tonon-binding rules, codesand standards; Principle 2.10: The boardshould ensure that thereis an effective risk-basedinternal audit; Principle 2.11: The boardshould appreciate thatstakeholders’ perceptionsaffect the SOC’sreputation; Principle 2.12: The boardshould ensure the integrityof the SOC’s integratedreport; Principle 2.13: The boardshould report on theeffectiveness of the SOC’ssystem of internal controls; Principle 2.14: The boardand its directors shouldact in the best interests ofthe SOC; Principle 2.15: The boardshould consider businessrescue proceedingsor other turnaroundmechanisms as soon asthe SOC is financiallydistressed as defined inthe Companies Act;. Does the board followa compliance approachto governance in whichit only considers whichprovisions of the PFMAhave been compliedwith, or does it considerthe wider principles ofgovernance, as espousedin King III? In the event that the boarddoes not appoint itschairman and CEO, doesit make recommendationsto the shareholder andexecutive authority in thisregard?
page 10Companies ActState-owned companies: Companies Act, PFMA and King III in perspectivePFMAKing IIICommentRole and functions of the boardThe board must promptlyinform the National Treasuryof any new entity which thatSOC intends to establish, orin the establishment of whichit takes the initiative andallows the National Treasurya reasonable time to submitits decision prior to formalestablishment; andThe board must comply, andensure compliance by theSOC, with the provisionsof this Act and any otherlegislation applicable to theSOC. Principle 2.16: The boardshould elect a chairmanof the board who isan independent nonexecutive director. TheCEO of the SOC shouldnot also fulfil the role ofchairman of the board;and Principle 2.17: The boardshould appoint the chiefexecutive officer andestablish a framework forthe delegation of authority.Election of audit committeesAudit committee membersmust be elected by theshareholders at the AGM.The board must establish anaudit committee (per TreasuryRegulation 27.1.1), whileaudit committees may also beshared between an SOC andits subsidiaries.Principle 3.1 determines thatthe board should ensure thatthe SOC has an effective andindependent audit committee.The provisions of theCompanies Act conflict withthose of the PFMA concerningwho elects the membersof the audit committee.Section 3(3) of the PFMAdetermines that if any conflictexists between the PFMAand another Act, the PFMAprevails.We submit that the objectiveof all these provisions isto ensure an effective andindependent audit committee.Even if the board does notelect the audit committee, itneeds to play a role in makingsure that the audit committeeis effective.Similarly, if the board isresponsible for electing theaudit committee (say by virtueof its enabling legislation),it needs to follow a processthat will safeguard theindependence of the auditcommittee.For SOC boards to consider: Is the board proactivein ensuring an effectiveand independent auditcommittee?
State-owned companies: Companies Act, PFMA and King III in perspectiveCompanies ActPFMApage 11King IIICommentPrinciple 3.2 advocatesthat all members of theaudit committee of an SOCmust be suitably skilled andexperienced independent nonexecutive directors.The requirement that auditcommittee members beindependent is more explicit inthe Companies Act and KingIII than in the PFMA.Members of the audit committeeMembership requirementsare stipulated in section 94(2)and (4), but determines thatmembership of the committeemust consist of at least threemembers who are directors ofthe SOC and independent asdescribed.Section 94 specifies that eachmember of an audit committeemust be a director of the SOC,who satisfies any requirementsthe Minister may prescribe asnecessary to ensure that anysuch committee, taken as awhole, comprises personswith adequate relevantknowledge and experience.Such members may not beexecutives (current or previousfinancial year) in the employ(current or past three years) ofthe SOC, a material supplieror customer of the SOC. Therequirement to be independentand objective will also excludefrom membership personswho are related to personswho meet the criteria in theprevious sentence.Any vacancy on the auditcommittee must be filledwithin 40 business days afterthe vacancy arises.Section 77 states that theaudit committee shouldcomprise at least threepersons and must meet atleast twice a year.Treasury Regulation 27.1.4states that the majority ofthe members of an auditcommittee shall consist ofnon-executive membersappointed by the board,although committee membersneed not all be members ofthe board. The majority ofpersons serving on an auditcommittee must be financiallyliterate.Furthermore, TreasuryRegulation 27.1.3 stipulatesthat the chairpersonof the audit committeemust be independent, beknowledgeable of the statusof the position, have therequisite business, financialand leadership skills and maynot be the chairperson of theboard or a person who fulfilsan executive function in theSOC.The Minister must concur withany premature termination ofservices of a member of theaudit committee.Under this principle, thecollective skills required of theaudit committee are listed asfollows: Integrated reporting,which includes financialreporting; Internal financial controls; External audit process; Internal audit process; Corporate law; Risk management; Sustainability issues; Information technologygovernance as it relates tointegrated reporting; and The governance processeswithin the SOC.In this instance, it is nota matter of conflictingprovisions, but rather thatKing III and the CompaniesAct set the higher governancestandard. It will in our viewnot be possible for SOCsto merely comply withthe PFMA without takinginto account the morestringent requirements of the
The Companies Act applies to all companies, including SOCs. Section 3(3) of the PFMA determines that if any conflict exists between the PFMA and another Act, the PFMA prevails. The interrelationship between the PFMA and the Companies Act is evident from the similarity of its respective
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