What is the Difference Between a Memorandum of Incorporation and a Constitution

The terms “memorandum of incorporation” (MOI) and “constitution” are often used interchangeably when referring to the primary governing document of a company, but there are some key differences:

Definition:

• A memorandum of incorporation (MOI) is the specific term used in South African company law to refer to the founding document that sets out the rights, duties and responsibilities of shareholders, directors and others within a company, as per the Companies Act of 2008.
• A constitution is a more general term that can refer to the overall set of rules, agreements, and documents that govern the company, including but not limited to the MOI.

Scope:

• The MOI is a single statutory document required for the incorporation and registration of a company in South Africa.
• A company’s constitution can be broader, potentially including the MOI, shareholder agreements, and other resolutions or policy documents that regulate the company’s affairs.

Legal Status:

• The MOI is a legally binding and enforceable document filed with the Companies and Intellectual Property Commission (CIPC).
• Some elements of a constitution, like shareholder agreements, may be contractual in nature rather than having statutory force.

Alteration:

• The MOI can only be amended by following specific procedures outlined in the Companies Act, often requiring a special resolution.
• Parts of the constitution outside the MOI may potentially be amended through contractual renegotiation between relevant parties.

In summary, while the MOI is the core statutory document defining a company’s existence and governance, the constitution can be a broader concept encompassing the MOI along with other relevant agreements and rules that collectively establish the company’s operating framework. The Companies Act focuses primarily on regulating the MOI as the foundational constitutional document.

Citations:
[1] https://legalvision.com.au/what-is-a-company-constitution-what-does-it-mean-to-adopt-a-company-constitution/
[2] https://legalvision.co.uk/corporations/company-constitution/
[3] https://www.lexisnexis.co.uk/legal/glossary/company-constitution
[4] https://lawpath.com.au/blog/what-is-a-company-constitution
[5] https://www.thecorporategovernanceinstitute.com/insights/lexicon/what-is-a-company-constitution/
[6] https://support.infodocs.co.za/en/article/memorandum-of-incorporation-moi-as4c0j/
[7] http://www.rmpp.co.nz/site_files/13089/upload_files/CompanyConstitution(fornewEP)-Dec16(002)(1).pdf?dl=1
[8] https://www.onboardmeetings.com/blog/articles-of-association-vs-memorandum/
[9] https://www.lexisnexis.co.uk/legal/guidance/a-companys-constitution
[10] https://www.isasa.org/pro-forma-memorandum-of-incorporation/
[11] https://www.justice.gov.za/legislation/acts/2008-071amended.pdf
[12] https://www.caveatlegal.com/blog/new-companies-act-moi-deadline-whats-the-fuss/
[13] https://llgv.co.za/memorandum-of-incorporation-versus-a-shareholders-agreement-some-important-considerations/
[14] https://www.iitpsa.org.za/constitution/

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