The Memorandum of Incorporation (MOI) is the founding document or “constitution” of a company. The document sets out the rights, duties and responsibilities of shareholders, directors and others and their relationship with the company.

Under the old Companies act (1973), a company would have two founding documents namely the memorandum of association and the articles of association. The new 2008 Companies act has abandoned the previous two documents and now provides only for one document, the Memorandum of Incorporation.

Broadly speaking the Memorandum of Incorporation deals with issues such as the powers of the company, the ability to create company rules, securities, debt instruments, shareholders meetings, the composition of the board of directors, the authority and powers of the directors and so forth.

Before a company can be registered, they must submit a Memorandum of Incorporation. The Companies and Intellectual Property Commission (CIPC) has some default Memorandums of Incorporation (CoR 15.1 A-E) that can be used. A company need not use one of the default Memorandums of Incorporation and can draft their own unique Memorandum.

An important aspect of the new Companies Act (2008) is that it provides for alterable and unalterable provisions. The unalterable provisions are mandatory requirements of every company and thus cannot be changed. A major part of all Memorandums of Incorporation are the recording of the alterable provisions of the Companies Act as agreed by the shareholders.