The increasing importance placed on compliance and corporate governance has enhanced the roles of a company secretary in modern business practice. In Tanzania all companies whether private or public are required to have a company secretary under Section 187(1) of the Companies Act, [Act No. 12 of 2002] “the Act”. A company secretary is expected to be a person with requisite knowledge and experience to perform the roles as required by the Act. The scope of the roles and duties of a company secretary will differ depending on the type of a company and the nature of business it undertakes. In summary, the roles of a company secretary may be itemized as follows:
- Reporting and advising the board of directors about compliance as required by the applicable laws.
- Filling of annual returns and annual accounts of the company.
- Recording and filing changes of shareholdings, directors or the registered office.
- Issuing share certificates and dividend vouchers.
- Making arrangements for company meetings, and maintaining the minutes book etc.
- Ensuring the company complies with all statutory obligations in tax law or other laws.
- Maintaining registers such as the register of members and others.
In the contemporary company setting the roles and powers of a company secretary are evolving from that of a “minute taker” to one with extensive executive roles and deeper responsibilities. Furthermore, a company secretary is presumed to be knowledgeable of almost all transactions and decisions made by the company; this place him in a position of being called forth to be answerable or accountable to various regulatory authorities including a court of law. Under Section 2 of the Act, a company secretary is considered to be an officer of the company similar to directors or managers of a company. In that regard, a company secretary may face multifarious liabilities if he defaults in any of the following roles:
1. Failure to maintain the following register/index
- Register of directors and secretaries under section 210 of the Act
- Register of members under section 115 (4) of the Act
- Branch Register of members under section 124 (3) of the Act
- A registered office of the company as per section 110 (2) of the Act.
- Paint or affix company name in the manner required by section 112 (2) of the Act.
2. Failure to send copies to members or allow inspection of the following documents;
- MEMARTS under section 22 of the Act
- Registers or index of members under section 118 (3) of the Act
- Minute books under section 150 (3) of the Act.
- Account report copies
- Register of directors/secretary
- Circulation of members resolution under section 142 (7)
3. Issuing copies of MEMART not in line with alterations after alteration date under section 23 (2) of the Act.
4. Default in notifying the Registrar of the following:
- Consolidation of share capital or conversion of shares to stock under section 65 of the Act.
- Increase of share capital under section 66 (3) of the Act.
- Refusal to register a transfer of shares under section 80 (2) of the Act.
- Change of a private company to public company under section 29 (2) of the Act.
- Change of registered office under section 111 (4) of the Act.
5. Carrying business with the word PLC or limited wrongly under section 34 (4) of the Act.
6. Offering/ allotting of shares or debentures to the public by private company under section 45 (3) of the Act.
7. Failure to deliver to the Registrar the following:
- Annual returns under section 128 (3) of the Act.
- Resolution or agreement for registration under section 145 (5) & (6) of the Act.
- Registration of any charge or issue of debenture under section 100(3) of the Act
- Return of the allotment of shares under section 55 of the Act
8. Appointment of disqualified auditors for the company under section 175 (4) of the Act
9. Default in holding annual general meeting under section 133 (4) & (7) of the Act
10. Failure to maintain records for Minutes of proceedings of meetings of company and director under section 148 (4) of the Act.
The above liabilities of a company secretary are solemnly derived from the Act. It is to be pointed out that other laws such as the tax law regime also impose different liabilities on a company secretary. It is noteworthy that the liability of a company secretary is limited to the involvement of the company secretary in the affairs of the company. This is due to the practice that most company secretaries are appointed as a matter of compliance with the law but in practice, most of them do not take full charge of their roles and responsibilities as enumerated herein above. They are more or less ceremonial in the eyes of internal structure of a company but in the eyes of the law, they are the ones charged with the day to day affairs of the company.