PRESCRIBED OFFICERS IN TERMS OF THE ACT
“The Act introduces the definition of a Prescribed Officer which, in terms of Regulation 38 of the Act, is a person who, despite not being a director of a company, exercises general executive control and management over the whole, or a significant portion of the business activities of a company or a person who regularly participates, to a material degree, in the exercise of general executive control and management over the whole, or a significant portion, of the business and activities of the company. This is the case irrespective of any particular title given by the company to the office held by the individual in the company or the function performed by the individual in the company.
The effect of being a Prescribed Officer in terms of the Act would be that such an individual would be subject to the same duties and liabilities of directors, including adherence to Section 75 and Section 76 of the Act, relating to personal financial interests and director’s standards of conduct. This would entail that such an individual would owe fiduciary duties to the company to act in the company’s best interest, not to make a secret profit or misappropriate opportunities that should be opportunities of the company.
The problem is what happens if the Prescribed Officer does not know that they are Prescribed Officers. The company should consider a resolution appointing such an officer.