Only a practising attorney may draft a memorandum of a company. A memorandum of a company includes a memorandum of incorporation (MOI) under the new Companies Act. If anyone else does, they are committing a criminal offence. There are many people who do currently draft them and charge a fee. Some (like banks) do draft them, but don’t charge a fee.

According to the law, any person who for a fee drafts a memorandum (or articles of association) of any company is guilty of an offence and on conviction can be fined R2,000 for each document or if unpaid imprisoned for not longer than six months.

Section 83(8)(a) of the Attorneys Act

The full section 83(8)(a) reads “Any person, except a practising practitioner, who for or in expectation of any fee, gain or reward, direct or indirect, to himself or to any other person, draws up or prepares or causes to be drawn up or prepared any of the following documents, namely:

  1. any agreement, deed or writing relating to immovable property or to any right in or to immovable property, other than contracts of lease for periods not exceeding five years, conditions of sale or brokers’ notes;
  2. any will or other testamentary writing;
  3. any memorandum or articles of association or prospectus of any company;
  4. any agreement, deed or writing relating to the creation or dissolution of any partnership or any variation of the terms thereof;
  5. any instrument or document relating to or required or intended for use in any action, suit or other proceeding in a court of civil jurisdiction within the Republic,

shall be guilty of an offence and on conviction liable in respect of each offence to a fine not exceeding R2,000 and in default of payment thereof to imprisonment not exceeding six months.”

Draft a Memorandum of a Company

The Legal Practice Act has been enacted and will change the position, but it has not yet commenced. The Attorneys Act is still in force and so for now many people are committing criminal offences. We will update this post when the Legal Practice Act repeals the Attorneys Act. We are practising attorneys and can draft a MOI for you.

Wills or other testamentary writings

It is also worth noting that only practising attorneys can draft wills or other testamentary writings. If other people are drafting them, they should not be charging a fee.