Legal Articles and Guides
Directors face many challenges, not least amongst them the constant danger of being held personally liable for any failure to comply with their statutory duties. In addition to facing civil claims for losses sustained, and even possible criminal liability, directors risk being declared “delinquent”.
The Companies and Intellectual Property Commission (CIPC) has succeeded for the first time in getting a court order declaring a director delinquent under the Companies Act. A Business Day report says Western Cape High Court Judge Dennis Davis declared Owen Wienand, a director of Skyport Corporation Ltd – which is in liquidation – a delinquent director for seven years on the grounds of his ‘gross negligence’ and flagrant violation of his duties as a director.
A legal fight has erupted over shares in a KZN stationery firm, amid allegations that an employee had been siphoning off millions to pay towards uMhlanga properties and a luxury vehicle. The Mercury reports the allegations came to light in a recent KZN High Court (Durban) judgment in an application brought by a businesswoman to demand that shareholders of Afro Pulse 46 (Pty) Limited – trading as Power Stationery – purchase her shareholding and loan account in the company.
The Western Cape High Court has dismissed Dave Woollam's case against four directors of Lewis Group, describing it as frivolous, vexatious and without merit. Judge Ashley Binns-Ward also awarded costs against Woollam, a director of Summit Financial Partners, says a BDlive report.
Moneyweb says it is a step closer to accessing the shareholder registers of the three companies that today own and manage the erstwhile Sharemax Investment Properties, in which more than 33 000 people (mostly elderly) invested R4.5bn. It says the Constitutional Court denied the directors of the three companies leave to appeal against an SCA ruling and ordered them to pay Moneyweb’s costs.
Land reform beneficiaries in Limpopo are accusing their lawyer of hijacking their multimillion-rand farming project, notes a City Press report. The beneficiaries of the R61.4m Zebediela Citrus Estate in Limpopo allege prominent lawyer Tumi Mokwena got a stake in their business through the back door. Mokwena, who represented EFF leader Julius Malema in his tax trial, came to Zebediela Citrus as a lawyer last year to represent the 1 500 beneficiaries when they were fighting the removal of a strategic partner, Henley Property Management.
Since the “new” 2008 Companies Act came into effect in 2011, directors and other company officers have had to shoulder a raft of additional responsibilities and risks, amongst them a significantly increased risk of personal liability. Consider for example the little-known section 218(2) which waits in ambush for the unwary in the “Miscellaneous Matters” section at the tail-end of the Act.
The Broad-Based Black BEE (B-B BEE) Commission established in April has already received about 100 complaints about fronting and other abuses, some of which commissioner Zodwa Ntuli has found â€˜traumatisingâ€™, notes a Business Day report. Most of the 95 complaints are from shareholders â€“ most often employees â€“ who were allocated significant shareholdings in order for the companies to achieve a high level of empowerment in terms of the codes of good practice.
The decision of the SCA regarding access to company records in terms of section 26 of the Companies Act
On 12 May 2016 the SCA delivered a judgment in the matter of Nova Property Group Holdings v Cobbett. The appeal arises from the attempts of Moneyweb and Mr JP Cobbett to exercise their statutory right in terms of section 26 of the Companies Act 71 of 2008 to access the securities registers of Nova Property Group Holdings Limited, Frontier Asset Management & Investments and Centro Property Group.
Even the most experienced businessmen have moments of short-sightedness when conducting business deals which may leave them in hot water. All too often, poor contract craftsmanship or legal oversight is the primary reason for their dismay. For example, what happens when you enter into a contract without express terms governing its termination? This is where the parties found themselves in the case of Plaaskem v Nippon Chemicals heard in the Supreme Court of Appeal.