The Company Secretary (“Keeper of Secrets”)

The appointment of a company secretary has become mandatory for all public companies with a share capital. The Companies Act states that directors of a public company are obliged to appoint a company secretary, who in their opinion is suitably experienced and qualified. Failure to do so could result, on conviction, in a fine and/or 3 months imprisonment. The role of the secretary has become extremely demanding and may also result in the encumbent in certain circumstances as an officer of the Company being held personally liable for the company's failure to comply with the law.

The duties of a company secretary will differ from company to company, however, as stated above, the secretary as a minimum requirement is obliged to comply with the law and practice of good corporate governance at all times.

Appointment of company secretary

• The directors have to appoint a company secretary
• The secretary has to be a resident of the Republic
• The secretary has to have the requisite knowledge and experience to perform the duties
• The first secretary shall be appointed by the majority of the subscribers to the memorandum
• Consent to act as secretary must accompany the documents lodged with the Registrar (CM27A) and a copy kept on file for the company's records – no appointment shall have legal force unless the CM27A has been lodged with the Registrar
• If not appointed within 21 days of incorporation, the directors shall appoint a secretary
• Failure by the directors to appoint a secretary would make them guilty of an offence
• A casual vacancy shall be filled by the directors within 90 days
• A notice of failure to appoint shall be lodged with the Registrar within 7 days of the expiry of the 90 days by the public company. A director may also lodge such notice.
• Failure to comply shall constitute an offence by the directors and the Registrar or the Court may, upon application by a director or member, order the Company to make an appointment
• During any vacancy the directors may appoint any officer to act in his stead
• A body corporate or partnership may be appointed, if one person in its employ qualifies to be a company secretary
• If a qualified person continues to be in its employ, or a partner, a change in membership/shareholding shall not be considered to be a casual vacancy
• Immediately upon the services of a qualified person ceasing to be available to a body corporate or partnership, it shall immediately resign its appointment
• S214 of the Act provides that the acts of a director shall be valid notwithstanding any subsequently discovered defect in appointment – this shall also apply to the company secretary as stated in S268E

[Refer to S268 A to S268 I of the Companies Act.]