Memorandum of Incorporation (MOI)
Also known as: Memorandum of Incorporation, MOI, Company Constitution.
What is Memorandum of Incorporation?
The Memorandum of Incorporation (MOI) is the constitutional document of a South African company, setting its rules on shares, directors, shareholder rights, and governance. Under Section 15 of the Companies Act 71 of 2008, the MOI binds the company, its directors, and all shareholders, and prevails over any conflicting shareholders agreement.
Drafted and reviewed by
Attorney & Founder, My-Contracts.co.za · Legal Practice Council of South Africa (LPC F17333)
Definition and context
The Memorandum of Incorporation (MOI) is the sole constitutional document of a South African company under the Companies Act 71 of 2008, replacing the old twin-document Memorandum and Articles of Association regime that applied under the Companies Act 61 of 1973. The MOI is lodged with the Companies and Intellectual Property Commission (CIPC) on incorporation (Form CoR 15.1 for the standard short-form, CoR 15.2 for long-form tailored MOIs) and sets out the company's name, share structure, director composition, shareholder rights, and any limitation, restriction, or extension of the default statutory rules.
Section 15(1) provides that the MOI binds the company, each shareholder, each director, each prescribed officer, and each committee member, giving it contractual and constitutional force. Section 15(2) distinguishes "alterable" and "unalterable" provisions — alterable provisions are statutory defaults that the MOI may change; unalterable provisions are mandatory and may not be varied. Examples of alterable defaults include pre-emptive rights on new issues (Section 39) and the quorum for shareholder meetings (Section 64). Examples of unalterable provisions include directors' fiduciary duties (Section 76) and the solvency-and-liquidity test (Section 4). Section 15(7) provides that any shareholders agreement must be consistent with the MOI and the Act; a conflicting shareholders-agreement provision is void to the extent of the inconsistency.
In practice, the MOI is the strategic centrepiece of company structuring. Tailored long-form MOIs include share-class rights, pre-emption on transfers, tag-along and drag-along rights, reserved matters, director-appointment rights, and transfer restrictions — entrenching protections that bind future shareholders by virtue of CIPC filing. Amendments require a special resolution (75%) under Section 16 and must be lodged with CIPC to take effect. The "ring-fenced" flag on the MOI (denoted "(RF)" in the company name) warns third parties that the MOI contains restrictive provisions displacing statutory defaults — failure to flag ring-fencing can expose the company to third parties relying on Section 20.
Where this term lives in law
Companies Act 71 of 2008
Sections: 1, 15, 16, 20, 39, 65, 66
Governs the incorporation, governance, and winding-up of companies in South Africa.
Frequently asked questions
What is the difference between an MOI and articles of association?
The MOI replaced the dual-document "memorandum of association + articles of association" regime under the old Companies Act 61 of 1973 when the Companies Act 71 of 2008 took effect on 1 May 2011. Companies incorporated under the old Act have their existing documents deemed to be their MOI until amended. The MOI is a single, unified constitutional document — there are no longer separate articles.
Does a shareholders agreement override the MOI?
No. Section 15(7) of the Companies Act provides that any shareholders agreement must be consistent with the MOI and the Act — any conflicting term in the shareholders agreement is void to the extent of the inconsistency. Best practice is to draft the MOI and shareholders agreement together, with sensitive protections (pre-emption, tag, drag) embedded in both but the MOI controlling.
How is the MOI amended?
Under Section 16 of the Companies Act, the MOI is amended by a special resolution (75% of voting rights) unless the MOI itself specifies a higher threshold. Amendments must be filed with CIPC on Form CoR 15.2 and take effect from the date of filing (or later date specified). Certain amendments — such as changing the company name or increasing authorised shares — require additional CIPC compliance steps.
What does "(RF)" mean in a company name?
"(RF)" stands for "Ring-Fenced" and is required under Section 11(3)(b) of the Companies Act where the MOI contains restrictive conditions or procedural requirements that limit the default statutory powers. The suffix warns third parties dealing with the company to review the MOI before relying on apparent authority under Section 20 of the Act.
Contract templates using this term
2 templates reference Memorandum of Incorporation (MOI).